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Are your employees costing you money?

Business Column

Ken Hodges

Ken Hodges

Under Georgia law, an employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of any incompetence. Therefore, if a person is injured as a result of the employer’s negligence in hiring or retaining the employee, that person may have a valid cause of action against the employer.

To sustain a cause of action against an employer for negligent hiring or retention, the injury must have occurred while the employee was performing work in the scope of his or her employment at the time the injury occurred. Further, the plaintiff must show that the employer knew or should have known of the employee’s tendency to engage in the same type of conduct that caused the plaintiff’s injury.

For instance, where an employee engages in workplace violence and a thorough investigation into that employee’s past would have revealed similar violent episodes, the employer may be liable for negligent hiring.

How does an employer prevent liability for a negligent hiring or retention claim based upon the standard that it knew or should have known of the employee’s tendency to engage in the same type of conduct that caused the plaintiff’s injury?

In the hiring context, employers should consider conducting thorough background checks on prospective employees and eliciting prior employers’ opinions of the employee. Employers should also conduct specialized inquiries depending on the relevant employment area. Thus, a school hiring a new physical education coach should be sure to check whether the prospective employee is on the nationwide sex offender registry. Likewise, a trucking company hiring a new driver should check the prospective employee’s driving record as well as the status of any applicable trucking certifications.

Although employers are not required to conduct background checks for many professions, doing so may go a long way toward preventing liability for negligent hiring. Indeed, where a potential employee’s background checks all turn up clean, the employer is not likely to be found liable for negligent hiring due to a future injury. For instance, in a recent Georgia case, an employer was not found negligent in hiring a truck driver who killed plaintiffs in a vehicle collision because the driver’s CDL was valid, his three-year driving record was clean, and the employer contacted the driver’s sole former employer before hiring him and required him to pass a pre-employment 2,000-mile road test.

In the retention context, the employer must not turn a blind eye to the employee’s activities. Therefore, to escape liability for negligent retention, the employer should take action on complaints from co-workers and the public about the employee’s behavior, taking reasonable steps to correct or remedy the situation. The employer also cannot ignore the employee’s performance on employment checks such as drug tests and training courses. In the aforementioned trucking case, for instance, the employer was not liable for negligent retention where the truck driver had not been involved in any trucking accidents before the accident in question and where the truck driver had successfully completed the employer’s annual safety and training courses. In that case, the employer took note of its employees’ performances, which paid off in the end for the employer.

The lesson to be learned is that employers need to take reasonable steps in the pre-employment and employment stages to look out for warning signs, and, as always, consult with legal counsel for their particular employment needs.

Kenneth B. Hodges III, a partner in the law firm of Ashe Rafuse & Hill LLP, writes a periodic column on business law for The Albany Herald. He is the former district attorney for the Dougherty Judicial Circuit. He can be contacted at kenhodges@AsheRafuse.com.