In Negligent Hiring and Retention it’s About What You Knew, Or Should Have Known

The case of a California minor who sued his public high school guidance counselor and the school district for damages arising out of sexual abuse and harassment by the counselor sends a clear warning to public and private employers alike:

If you knew or should have known of an employee’s propensities for potentially damaging behavior and that employee causes injury to another, you may be held vicariously liable.

In the case of C.A. v. William S. Hart Union High School District, the California Supreme Court reversed a lower court dismissal of a complaint against the California school district and held that, in fact, the public school district may be found vicariously liable for the acts of its employees, citing ample case authority to establish that school personnel owe students under their direct supervision a protective duty of ordinary care. Specifically, the Court ruled that negligence may be found in supervisory or administrative personnel who allegedly knew, or should have known, of an employee’s propensities and still hired, retained, and inadequately supervised them.

Key Takeaways for Employers:

1. Respondeat Superior? What?

Typically, employers look to the doctrine of respondeat superior, which makes an employer responsible for an employee’s negligence only when the actions occur within the scope of employment. In the School District case, the Court ruled that the actions of the guidance counselor occurred outside the scope of her employment. Still, the case is going forward with negligence being placed on the people who worked with and supervised the counselor so the lower court can determine whether they knew or should have known and therefore, could have protected the child from abuse.

2. Employment Screening Doesn’t Stop At Go.

A traditional hiring process is complete with checks and balances designed to ensure each employee is adequately screened, interviewed, and verified before being hired. All of this helps protect employers from cases of negligent hiring. Less attention is paid to the closely related case of negligent retention, which arises in situations where an employer continues to retain an individual who is no longer fit for the position. Once again it comes down to whether you knew or should have known… Employers must demonstrate duty of care in retaining employees and if reasonable suspicion exists, employers should perform reasonable investigations, and based on the findings, possibly perform reasonable intervention to remedy the situation.

A dramatic and unfortunate case of like this sends strong messages to public and private employers alike. Rid your organizations of the temptation to look the other way or to place blind faith in people. It all comes down to doing what’s right and the right thing to do is to craft serious hiring and retention practices that put safety and security considerations at the forefront.

If you’re serious about hiring and retaining the right people, we’d love to talk to you.

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About Michael Gaul

A security industry professional since 1988, Michael has extensive expertise in the fields of human capital risk management, physical security, and background screening process management. Michael leads Proforma’s sales, marketing, and strategic customer relations efforts.


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