Negligent Retention

Carol Eliason Nibley
Carol Eliason Nibley

Table of Contents

Do you know that your company can be liable for the actions of your employees if they cause harm to other employees or third parties? Find out what negligent retention claims are and how they can be avoided.

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What Is Negligent Retention?

Negligent retention is the failure of an employer to terminate an employee when they knew or should have known, that the employee posed danger to others. While no employer can guarantee that every employee is mentally stable and poses no threat to the safety of others, employers are obligated to take action when they have concerns about the suitability of one of their employees after the employee is hired. This includes behaviors the employee engages in while off duty, such as an employee posting hateful rhetoric on a social media site.

For example, an employee erupts after a supervisor asks him why he is late to work. Although the employee stops yelling and making threats after a few minutes, the supervisor is surprised and a bit worried about the employee’s reaction. A week later, the same employee engages in a fight with a co-worker, causing the co-worker an injury that requires hospitalization.

In the situation above, the employee whose reaction was extreme should have been disciplined and removed from duty until the supervisor was confident the employee posed no risk to others.

Negligent Retention vs Negligent Hiring

Negligent retention and negligent hiring are similar in that both involve an employer’s negligence in retaining or hiring employees who pose a risk of harm to others. Negligent hiring usually occurs because the employer did not conduct appropriate pre-hiring screening activities and hired someone they should have known could be unfit for the position.

Negligent retention is allowing an employee to remain with the company despite evidence they are unsuitable. Negligent retention also includes the lack of appropriate discipline for someone who engages in inappropriate activities, the failure to transfer an employee when the potential for harm is present, and the lack of ongoing supervision of someone whose behaviors warrant close monitoring.

What Are the Results of Negligent Retention?

Typically, the results of negligent retention include harm to others—employees, customers, and other third parties—and potential legal action against the employer. Company reputation and morale are also impacted by an employer’s failure to remove an employee who poses a danger to others.

  • Harm to others. In extreme situations, negligent retention may involve life-threatening (or worse) injuries to others. Other types of harm may include violence, harassment, and theft.
  • Legal and financial. Time to defend claims of negligent retention and the costs involved, including legal costs, is expensive. A determination of liability may include actual costs of medical expenses for injuries, pain and suffering awards as well as punitive damages.
  • Company reputation and morale. Even one negative instance of a company failing to protect its employees and customers may create significant fallout in terms of reputation, brand, and morale.
  • Productivity. A loss of productivity as a result of a negligent retention situation can be extensive. Instead of focusing on the work of the company, employees may be involved as witnesses, and managers may be involved in damage control. Even employees without personal involvement in the situation may feel less safe at work, leading to a loss in productivity. In some situations, employees may leave for what they believe is a safer environment in which to work.

How to Avoid Negligent Retention

As troubling as the implications are for negligent retention, employers can follow some basic steps to prevent and mitigate the actions of its employees.

Step 1: Hire Carefully

Being thorough when screening candidates before offering employment is the best way to ensure employees are well-suited for their positions. Hiring carefully is the best way to prevent most problems before they happen!

Step 2: Create Clear Policies

Companies should have clear policies that set forth expectations as well as prohibit inappropriate workplace behaviors. Being specific about unacceptable behaviors is essential. Consider creating a zero-tolerance policy for violence. All employees should receive a handbook with these policies, acknowledge receipt of them, and be trained so they understand exactly what the policies are.

In addition to formal policies, companies need to be specific about complaint procedures when policies are violated. Complaint procedures should include multiple avenues for reporting so employees aren’t limited to their next in command. Open-door policies are often helpful in encouraging employees to come forward.

Step 3: Train Supervisors

All supervisors need to be trained to respond when problematic behaviors erupt in the workplace. When supervisors aren’t sure what to do, they often do nothing. Taking quick action is essential when employees demonstrate a propensity for violence or other serious behaviors.

Step 4: Thoroughly Investigate

Following the guidance of your legal counsel, interview anyone who may be involved in or witness an event. Make detailed notes and preserve all electronic records. It may be advisable to suspend an employee accused of causing harm during the investigative process. Suspension can be a great tool to further an investigation without interference, which is helpful for all involved.

Step 5: Take Appropriate Action

Take action and document it. Determine what action is appropriate for the situation per the guidelines in your employee handbook. Many situations warrant the termination of the perpetrator. If that is extreme for the current situation, perhaps a written warning, unpaid suspension, demotion, move to a different team, increased supervision, and/or additional training on the company’s anti-harassment and respectful workplace policies are more appropriate.

If this is not the first instance of inappropriate behavior on the part of the employee, you should also consider if the behavior is escalating in severity or if there is a pattern of behavior that is problematic. If one instance alone isn’t serious enough to warrant termination of employment, multiple instances may indicate a bigger concern.

Examples of Negligent Retention

Negligent retention can take many different forms. Here are a few common examples.

Verbal Threats

An employee makes verbal threats to others but isn’t disciplined. The employee later acts on those threats.

Sexual Harassment

An employee engages in sexually harassing behavior but isn’t fired. The employee later engages in sexual harassment.

Assault with a Weapon

An employee brings a weapon to the office but isn’t terminated. The employee later injures someone.

Theft

An employee is arrested for theft but allowed to keep his job. He later steals from a client while on a work-related visit to the client’s home.

Questions You’ve Asked Us About Negligent Retention

Can an employer be sued for negligent retention?
If an employer has failed to take appropriate action when an employee has caused harm to someone else, the employer can be liable for negligent retention.
What are the elements of negligent retention?
Negligent retention involves an employment relationship, the employer’s unwillingness to take action when an employee demonstrates unsuitability for his position, and injuries to someone else as a result of the employer’s failure to take action.
Do state laws vary on negligent retention?
While every state recognizes the issue of negligent retention, state laws vary. Please contact your employment law attorneys to learn your state’s laws.
Carol Eliason Nibley
Carol Eliason Nibley

Carol Eliason Nibley, SPHR, GPHR and Principal Consultant at PeopleServe, has more than 25 years of experience in human resources, most recently serving as Vice President of Human Resources for a technology company in Utah County. Carol has taught HR certificate courses at Mountainland Technical College and in other settings for more than 12 years.

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