California’s Law on Negligent Hiring, Supervision, or Retention of an Employee

California law makes an employer liable for an employee's negligence, recklessness or intentional wrongful acts when the employer knew or should have known that the employee was a risk to others. This law is known as California's law on negligent hiring, supervision, or retention of an employee.1

Unlike California's respondeat superior law, which makes an employer vicariously (indirectly) liable for an employee's wrongful acts, California's negligent hiring, supervision or retention law makes an employer directly liable for its own failure to protect others.2

This can be important because employees often lack the assets to pay for all of an injured person's compensatory damages in California. Employers have deeper pockets generally and are more likely to have insurance to cover the actions of their employees.

Examples of negligent hiring, retention or supervision of an employee include:

  • A taxicab or ride-sharing company hires a driver with a criminal history of assault and the driver commits battery on a passenger;
  • A school district ignores parent complaints of a teacher's inappropriate behavior toward children and the teacher sexually assaults a child; 
  • A Los Angeles hospital fails to implement appropriate evacuation protocols and during an earthquake a patient is critically injured in a slip and fall accident, or
  • A restaurant that fails to mandate that its food handlers wash their hands after using the restrooms (giving rise to a lawsuit against the restaurant for food poisoning injuries).

To help you better understand California's law on negligent hiring, supervision or retention of an employee, our California personal injury lawyers discuss, below:

1. The elements of a negligent hiring, supervision, or retention claim

To prove a defendant was negligent in hiring, supervising, or retaining an employee in California the plaintiff must show that:

  1. The employee was unfit or incompetent to perform the work for which he or she was hired;
  2. The defedant knew or should have known that the employee was unfit or incompetent and that it created a particular risk to others;
  3. The employee's unfitness or incompetence harmed the plaintiff; and
  4. The defendant's negligence in hiring, supervising, or retaining the employee was a substantial factor in causing the plaintiff's harm.3

2. Who is an employee in California?

For purposes of California's negligent hiring, retention or supervision law, employees consist of anyone subject to the direct control of an employer. Such people consist not only of salaried employees but of:

  • Temporary workers,
  • Independent contractors,
  • Per diem overflow workers,
  • Agents, and
  • Third parties such as security guards.

3. What knowledge about the employee is required?

To be liable for negligent hiring, supervision or retention, an employer must have known or been on notice that the employee was unfit or incompetent to perform the work for which he or she was hired or retained.

Sometimes this is simply a matter of the employer having received actual notice.

Example: A number of legal assistants complain to a law firm's human resources department that one of the attorneys has been inappropriately touching them. The HR person ignores the complaints because the lawyer in question is responsible for a large percentage of the firm's business.
Because the firm was on notice of the lawyer's inappropriate behavior, it might be held liable for sexual harassment claims. The firm negligently retained an employee it was told was engaging in unlawful behavior.

At other times liability depends on the duty of care owed to the plaintiff under California law.

Under California Civil Code 1714 everyone is responsible for injuries caused by their want of ordinary care or skill in the management of their property or person.

4. Special duties of teachers, ride-sharing companies and others

In addition to the ordinary duty of care, California statutes impose special relationships upon certain types of employers. For instance, schools owe a duty of care to use reasonable measures to protect students from foreseeable injury by third parties. This includes negligence by teachers, school personnel and even other students.4

Transportation network companies, such as taxis and limos, must by law conduct a criminal background check of their drivers.5 They may not hire a driver with a history of certain crimes, including crimes involving violence.

Example: Alex applies to drive for a taxicab company even though he has a three-year old conviction for California misdemeanor battery. The employee handling Alex' application overlooks the conviction and Alex is hired.
After a passenger starts arguing with him, Alex punches the passenger in the face. The passenger sues Alex for his medical bills, lost wages, and pain and suffering as well as punitive damages. He also sues the taxi company because the taxi company was negligent in hiring Alex.

Injured by someone's employee? Call us for help…

If you or someone you know has been injured by an employee, we invite you to contact us for a free consultation.

There may be more than one party who is liable for your injuries.

Call us at (855) LAWFIRM  to discuss your case with an experienced California injury lawyer.

We also have Las Vegas and Reno offices to serve your needs if you were injured as the result of negligent hiring in Nevada.

Legal references:

  1. Doe v. Capital Cities  (1996) 50 Cal. App. 4th 1038.
  2. Delfino v. Agilent Techs., Inc. (2006) 145 Cal. App. 4th 790.
  3. California Civil Jury Instructions (CACI) 426. Negligent Hiring, Supervision, or Retention of Employee.
  4. C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861.
  5. California Public Utilities Code 5445.2.

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