Negligent Hiring/Negligent Retention Update

Did you know that an employer can be held liable for the negligent hiring or negligent retention of an employee? An employer can be held responsible for negligent hiring or negligent retention if it hired or retained an employee that the employer knew or should have known was "unfit" for the position. Easely v. Apollo Detective Agency, Inc. 69 Ill. App. 3d 920, 26 Ill. Dec. 313, 387 N.E. 2d 1241 (1st Dist. 1979) In fact, if an employer becomes aware of circumstances in an applicant's private life that may suggest the employee is "unfit" for his position, the employer may face liability for negligent retention.

In Easely, Apollo Detective Service hired an individual without doing a sufficient background check. This particular employee had a variety of criminal convictions including convictions for crimes against people. The employee, during his employment with Apollo and while wearing his uniform which the Court found cloked him with the apparent authority as a detective, abducted and raped a woman. In this case, the plaintiff was able to establish a sufficient relationship between the employee's employment and the victim to allow recovery under a negligent retention theory.

While these are difficult torts to prove, the potential liability is significant. It is important to do adequate background and reference checks of applicants. Furthermore, it is equally clear that an employer cannot ignore information it receives regarding an employee's personal life. If for example an employee is investigated for child abuse and through their employment is regularly dealing with children, care should be taken to protect any children and it may even be necessary to terminate the employee to avoid liability. The traditional approach that "what an employee does on his own time, is his business" can be a dangerous attitude for Illinois employers to take. Criminal conviction information is available to you as an employer. This information can be obtained from the Illinois State Police Division of Forensic Services, Bureau of Identification, 260 N. Chicago, Joliet, IL. 60431-1060. Make sure to follow up appropriately and if questions arise, particularly with an existing employee, call me, Lorna K. Geiler, and we will discuss your options as an employer.

These publications are for general informational purposes only and should not be construed as legal, accounting, or tax advice or opinion as to any specific facts or circumstances. The information provided is based upon the law of Illinois and federal law, rules, and regulations as applicable. Receipt of this publication does not itself create an attorney-client relationship and is not a substitute for advice of legal counsel.