Negligent hiring is a lawsuit that victims can file against an employer for its employee’s misconduct. Seven common examples are:
- a transportation company hiring someone with a bad driving record,
- hiring a worker with a relevant criminal record,
- not firing a worker after similar misconduct,
- failing to supervise a worker,
- not conducting a background check,
- ignoring complaints about the employee, and
- lack of certifications.
1. Hiring drivers with bad driving records
The personal injury lawyers at our law firm have found that one of the most common examples of negligent hiring is when someone with a bad driving record gets hired to drive motor vehicles. Some of the situations this can happen in are:
- trucking,
- taxi driving,
- rideshare driving, and
- bus driving.
These professional drivers should have good driving records. Some examples of the kinds of blemishes that should keep someone from becoming a professional driver are a conviction or multiple infractions for:
- speeding,
- reckless driving,
- driving under the influence (DUI), or
- other moving violations.
If a professional driver has a bad driving record, then they are a risk to others on the road. It is foreseeable that their driving would cause a car accident. Because it is foreseeable, personal injury law holds the employer liable for the victim’s losses.
According to a California court of appeal:
“A negligent supervision claim depends, in part, on a showing that the risk of harm was reasonably foreseeable.”[1]
Transportation companies that want to take reasonable care to avoid a legal claim or negligent hiring case generally include driving record checks in their hiring process.
2. A relevant criminal record
More broadly speaking, hiring someone with a relevant criminal history for the job can be an example of negligent hiring.
Some particular examples of this include hiring a:
- bank teller with a prior conviction for embezzlement,
- ridesharing driver with a history of sexual assault,
- security guard with prior convictions for theft, and
- massage therapist with a history of sexual harassment.
For example: The company Cleaning Ladies for Homes hires Claudia, who has numerous prior convictions for theft and shoplifting. Claudia’s job is to vacuum and dust inside residences, often when the occupant is not at home. The people who own the homes that Claudia cleans start to report that things are going missing after she visits. The company may be held liable for negligently hiring Claudia.
If the employee’s actions or a job applicant’s work history would raise red flags that should affect the employer’s hiring decision, it can lead to a negligent hiring lawsuit.
3. Not firing a worker for similar misconduct
Negligently hiring someone is not the only way to be held liable for the worker’s misconduct. Employers can also be liable if they retain an employee after similar misconduct.
For example: Jose is a truck driver. While on the job, he gets pulled over and arrested for driving under the influence of drugs (DUID). He gets convicted for a first-offense DUI. He gets reassigned by his employer to a non-driving position but then, after he gets his license back, he gets put on the road again without any drug testing. Months later, he causes a truck accident. The police who respond to the crash find that he is under the influence of drugs again.
In these cases, the employer can be liable for the employee’s misconduct because there is a foreseeability that it would happen again.
4. Not supervising a worker
Negligently supervising an employee, or failing to supervise them at all, can make an employer liable for harm caused by the worker.
For example: The supervisors at an investment firm fail to oversee Clark’s accounts and do not realize that he has embezzled hundreds of thousands of dollars from his clients.
5. No background check
Not performing a criminal background check can also lead to liability for negligent hiring. This is particularly common when a thorough background check would have found a prior conviction for something similar to what the employee did.
For example: Jose, the truck driver with multiple DUIs on his record, applies for a trucking job. The company does not have a background screening process or any policy for reference checks in its hiring practices. The employer hires him. If Jose drives while under the influence of drugs again and causes another crash, the company may be liable for negligent hiring.
6. Ignoring complaints
If the employer was aware, or should have been aware, of an employee’s misconduct or incompetence but did nothing about it, the company may be liable for negligent retention. The company should have taken action that would have prevented the victim, but failed to do so.
For example: Several women in an office complain to human resources about their male supervisor’s sexual harassment. However, nothing is done. He then harasses Sarah, a new coworker.
7. Lack of certifications
Many occupations require certifications, professional licenses, or other credentials. If a company hires someone who does not have those credentials, it can amount to negligent hiring. The employer could be held liable for any injuries that the unlicensed employee causes.
For example: A healthcare company hires Ginny to be a registered nurse. Ginny, however, does not have the necessary license to be a nurse. She then commits medical malpractice.
The personal injury lawyers at our law firm have found that this type of negligent hiring claim is often complicated by the employee’s dishonesty. If the employee lied about having the necessary credentials and the employer did its due diligence but its vetting did not uncover the lie, it may be difficult to hold the employer liable for negligent hiring.
How negligent hiring claims work
Generally, negligent hiring claims aim to compensate the victim of an accident that was caused by an employee by holding the employer liable for it.
Negligent hiring laws vary by state. However, in California, you would have to prove the following five things by a preponderance of the evidence:
- the employer hired the employee,
- the employee was or became unfit or incompetent to perform the work for which they were hired to do,
- the employer knew or should have known that this unfitness or incompetence created a particular risk to others,
- the employee’s unfitness or incompetence harmed you, and
- the employer’s negligence in hiring, supervising, or retaining the employee was a substantial factor in the harm that you suffered.[2]
If proven, you could then hold the employer liable for your losses. Our attorneys have found that this is often very important, especially if insurance is not covering the incident. If that is the case, the employee who actually hurt you may not have the means to compensate you. By bringing the employer into the negligence claim, you get another source of compensation.
Legal Citations:
[1] D.Z. v. Los Angeles Unified School Dist., 35 Cal.App.5th 210, 229 (2019).
[2] California Civil Jury Instructions (CACI) No. 426.