It is the failure to screen employees adequately which results in hiring someone with criminal background. Negligent retention arises where the employer continues to retain the employee even after his unsuitability for the job becomes known to him, thus failure act suitably when it comes to his knowledge. Further, negligent supervision also will attract employer’s liability on his failure to monitor performance of his employee.
Insufficient security provided by the employees for safety of employees, customers and general public also will make the employer liable for employee’s act misusing the security lapse or as result of inadequate security. In a Minnesota Supreme Court case wherein the resident manger who misused the passkeys to enter into the tenant’s apartment and raped the tenant, the landlord was held liable for giving the resident manager pass keys in spite of his criminal record.
The court laid down the following principles. Duty of care: Employers having a duty of care should take reasonable care while hiring individuals appropriate to the employment involving contact with the public and capable of posing threat to the members of the public. Foreseeabilty: Though the employer landlord need not have foreseen the rape possibilities or any such violent acts, he ought to anticipate such violent acts from an employee having criminal history.
This aspect makes the rape possibility foreseeable by the employer. Reasonable Investigation: The employer though need not investigate the criminal record of the employee before being hired, the facts such as the employee’s furnishing only the particulars of the last three or some such brief period and listing of only giving details of relatives as references should arouse suspicion in the employer and cause him to investigate the applicant’s criminal background.
Cause: The employer landlord’s negligent hiring should be the proximate cause for what has happened to the victim. As such these negligent employers have been held liable in most of the jurisdiction including Alaska, California, Florida, Georgia, Illinois, Kansas, Maryland, New Mexico, and New York. To further explain the negligent hiring, the following examples will be of assistance.
A realty company engaged a camp counselor who shot the ranger’s son in his neck when playfully pointing the gun at him. The realty company had engaged him in spite of the fact that he had duped somebody a sum of $ 158,000 by giving forged documents for his former employer. With the knowledge of his criminal background, risk passed to employer for the employee’s subsequent bad behavior and hence the realty company was held liable.