What is negligent hiring? Answered by a Fort Worth employment attorney

Negligent hiring is a claim against a business for an injury caused by the company’s failure to properly investigate its employees for fitness to perform the employee’s job duties and that failure resulted in the employee causing the plaintiff harm in the course of the employee performing his or her job duties. There is a lot to unpack in that explanation and we will work through that in today’s post. Negligent hiring is a personal injury claim against an employer for a bodily injury caused by an employee. The injury may arise from the employee’s own negligence or the employee’s intentional bad acts.

At the core of this claim are two issues. First: whether the employer had a duty to investigate the employee. Second: whether the employer failed to satisfy that duty. Without this liability the plaintiff may have to pursue the employee directly for the employee’s own conduct. Let’s explore these concepts for a negligent hiring claim in Dallas or Fort Worth with an employment attorney.

Elements of a negligent hiring claim in Texas

In Texas a negligent hiring claim follows the basic elements of any other negligence claim but with a unique aspect. In negligent hiring we look past the individual who personally caused the harm to the party responsible for creating the conditions that allowed the employee to cause harm to the plaintiff. The elements of a negligent hiring claim are:

  1. The employer had a duty to hire competent employees;
  2. The employer breached that duty;
  3. The breach proximately caused the plaintiff’s injury; and
  4. The plaintiff’s injury is a harm of the type the law permits recovery.

Let’s break each of these down into less legal terms.

Duty to hire competent employees in Dallas and Fort Worth, Texas

First, the employer must have a duty to hire competent employees. This is generally true for all employers. It requires the employer to conduct reasonable investigations into the background of the job applicant. The level of background investigation depends upon the job duties and the risk of harm to the public. For some jobs statutes require a certain level of background checks before hiring an individual. This is common for jobs in finance, home services and commercial drivers. These statutory requirements makes it easy to determine the basic duty on the employer.

However, the employers have non-statutory duties to make reasonable inquiry into the applicant’s background for the job. This can still require conducting background checks, verifying employment or educational history and requiring aptitude tests to ensure the applicant possesses the skills to perform the job. The duty matches the job responsibility and the way the job risks harm to the public. For example, an individual working as a firefighter needs to safely perform certain duties like driving the fire engine. A bank teller, on the other hand, does not need those skills. The bank teller should not have a criminal history of theft or fraud to deal with money.

Fort Worth or Dallas employer must breach duty

Second, the employer must breach the duty; in other words, the employer must have failed to adequately investigate the job applicant before employing the individual. Once we know the job duties we can look at the facts to determine whether the employer took reasonable steps. Sometimes this is simple. If the job requires a license then we can see whether the license existed and whether the employer verified it. Sometimes it’s more difficult to sort out. Often the issue here is not whether the employer took any action but whether the employer’s efforts were reasonable.

For example, let’s say a person works in a call center and takes credit cards over the phone to make purchases. The employer verified employment history but did not conduct a criminal background check. Had the employer done a criminal records check it would have discovered this employee had a record of theft convictions. If the employee steals credit card numbers then the employer’s efforts were probably not reasonable. A breach of the employer’s duty may have occurred. At this point in the claim we could stop and determine that the employer has acted negligently but we need to look further at whether that negligence is the cause of the plaintiff’s harm.

Proximate cause of plaintiff’s injury in Texas

Third, we look at whether the employer’s negligence is the proximate cause of the plaintiff’s injury. Proximate cause is a legal term of art. It means the negligence is the actual cause of injury and the negligence closely relates to the injury to hold the employer liable. The plaintiff must prove both arms of proximate causation to recover against the employer. The first arm is the easier of the two. We must ask whether the employer’s negligence actually caused the plaintiff’s harm. The question is: but for the employer’s negligence, would the plaintiff have suffered this injury? To answer this question we need to look at whether there is a chain from the employer’s conduct to the harm that shows the harm would not have occurred without the employer’s conduct.

Using our call center example we can see that the employer failing to discover the employee’s theft history led to the employer hiring the employee which put the employee in a position to steal the credit card numbers and then sell them to another criminal who uses the numbers to make purchases. Had the employer conducted a background check it would not have hired the employee and let all the other events occur. In other words, but-for the employer’s negligence the plaintiff’s credit card number would not have been stolen. So we can satisfy the first element.

Next we look at the second arm of proximate causation: whether the chain of events from the employer’s negligence to the plaintiff’s harm is so reasonably related that as a matter of law we will hold the employer liable. This is a question of law designed to limit plaintiffs to recovering from parties closely related to the plaintiff’s harm. There is no hard line test here. It is a question of judicial discretion and often we look at prior cases to help shape the limits in the current case. Let’s continue with our call center example. Under the facts we’ve already described we can see a clear and close link between the employment and the fraudulent credit card purchases.

Let’s change the facts to show a different chain of events. Now the employer failed to conduct the background check and hires the employee. The employee doesn’t steal the plaintiff’s credit card number but uses his paycheck to buy credit card numbers from another criminal and then sells those numbers to a third criminal who makes fraudulent purchases with plaintiff’s credit card number. Here the employer is part of the chain of but-for causation because without the paycheck the employee could not have bought the credit card numbers. However, we would probably not say the employer bares liability because the employer’s involvement in causing the harm is remote. If we turn back to our original set of facts then we’re probably going to find the employer’s negligence was the proximate cause of the plaintiff’s harm.

Recovering for negligent hiring injuries with a Dallas-Fort Worth employment attorney

Fourth, we must determine if the plaintiff can recover for the injuries suffered and how much the plaintiff should recover. Not all injuries are recoverable under law but the plaintiff will probably be able to recover for financial losses suffered as a result of the theft. The plaintiff might also be able to recover other personal injury damages like mental anguish if the evidence supports significant anguish occurred. Again, the damages sought by the plaintiff must be proximately caused by the employer’s negligence. The longer the chain of events to get from the employer’s negligence to the harm the less likely the plaintiff will be able to recover for the harm.

Negligent Hiring and Respondeat Superior in Texas

Negligent hiring and related negligence claims like negligent training, negligent retention and negligent supervision are sometimes confused with claims brought under the legal theory of respondeat superior. Respondeat superior is the legal premise that when an employee acts in the scope of his or her employment the employee is the hand of the employer and the employer is directly responsible for the employee’s acts. Both respondeat superior and the negligence claims are legal theories that hold an employer liable for the employee’s conduct but in different ways. Under respondeat superior the employer is directly responsible for the employee’s conduct and the employer is responsible as though it took the harmful action of the employee itself or specifically directed the employee to perform the bad acts.

These negligence claims indirectly hold the employer liable for the employee’s bad acts. Here the employer’s liability exists by creating conditions that allowed the employee to cause the harm. The core distinction is that for respondeat superior the plaintiff must prove the employee’s bad acts occurred within the scope of the employee’s employment and job duties. For a negligent hiring, training, retention, or supervision claim the plaintiff only has to show the employer’s negligence created the opportunity for the employee to perform the bad acts. If the employment relationship creates the opportunity for the employee’s bad acts then the employer bares liability even if the employee’s bad acts are beyond the scope of employment. An employer’s liability has more limits under respondeat superior. Let’s look at a couple examples.

Example 1:

An employee is hired as a delivery driver. While making a delivery the driver fails to break quickly enough and slams into another car. Here respondeat superior applies because the employee was performing her job duties.

Example 2:

Employer hires the same employee as a delivery driver. The driver is supposed to be making a delivery but decides to go home, get drunk, then makes the delivery. While driving drunk the driver weaves into the plaintiff’s car. Here respondeat superior probably does not apply because drunk driving is far beyond the scope of employment. The plaintiff may have remedies against the plaintiff personally but probably not against the employer directly under respondeat superior. The plaintiff might look for negligence on the employer’s part in hiring the employee as a driver, such as failing to find the driver has two DUIs and was fired from two jobs for driving drunk or the employer knew the employee sometimes drove drunk and continued to employ the driver.

What types of claims are brought under negligent hiring in Dallas and Fort Worth, Texas?

Negligent hiring claims typically arise in one of two situations. The first is when an employee causes harm to somebody outside the employer through the employee’s physical acts. This might be negligent driving causing a car wreck or a physical assault that causes an individual injury. It could be physical harm to an individual, to property, or to both. These claims typically accompany other claims for negligence or assault. The negligent hiring claim may also accompany negligent supervision, training, or retention claims.

Second, negligent hiring claims may exist when an employee causes harm to another employee within the same business. An employee may cause harm to another employee or property. These claims may also exist with other negligence and assault claims against the employee, employer, or both.

Sometimes the employer attempts to distance itself from the employee by asserting the employee acted beyond the scope of employment. These arguments may be effective in avoiding direct employer liability under respondeat superior. Negligent hiring, along with negligent retention, training and supervision, may circle liability to the employer for the employee’s acts. This might occur where an employee commits theft (like our credit card example above) or performs job duties so far below the employer’s expectations that the employee’s performance is no longer within the scope of employment.

It’s worth taking a moment to talk about what type of claims are not appropriate under negligent hiring. Negligent hiring is not a suitable claim for an employer merely employing a bad employee. An unpleasant interaction with a bad employee is unlikely to create a claim unless a clear and significant injury occurred. Negligent hiring does not create an opportunity to sue your employer because another employee is bad at their job.

What to do if you believe you have a negligent hiring claim in Texas?

Unsurprisingly, the best first step is to talk to an employment attorney who deals with negligence claims and employment-related claims. Often negligent hiring claims should be brought to court with other claims and alternate theories of employer liability. It is important to understand not only what claims to bring but the sequence in which they should be presented to the court.

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