Earlier this year the Court of Appeals overturned the district court’s dismissal of a case regarding the negligent retention of an employee. In Hartfiel v. Allison, unpublished Court File # A15-1149 (Minn. Ct. App. 2016) Mr. Hartfiel, the plaintiff, drove truck for T.J. Potter Trucking Inc. as an independent owner-operator. Mr. Allison drove truck for Potter Trucking as an employee. In June 2010, Mr. Allison attacked Mr. Hartfiel at the workplace. Mr. Hartfiel sued Potter Trucking for negligent hiring, negligent retention and negligent supervision of Mr. Allison. The district court dismissed all of Mr. Hartfiel’s claims, and Mr. Hartfiel appealed.
The Court of Appeals reviewed the negligent hiring and negligent retention claims stating, “Negligent hiring is the failure of an employer to use reasonable care in hiring individuals who, through the employment, may pose a threat of injury to members of the public…. An employer will not be held liable for failure to discover information about the employee’s incompetence that could not have been discovered by reasonable investigation…”
Plaintiff Hartfiel claimed because Potter Trucking did not do a background check on Allison when it hired him, it did not conduct a reasonable investigation. Mr. Allison had previously been arrested for assault on two occasions. Generally, there is no legal duty that employers investigate an applicant’s criminal record. Potter Trucking does check applicants’ driving records but does not conduct criminal background checks. The Court of Appeals stated, “In determining whether an employer conducted a reasonable investigation, …is directly related to the severity of risk third parties are subjected to by an incompetent employee.” The Court of Appeals found there was no evidence to suggest that Potter Trucking knew or should have known of Allison’s violent propensities when it hired him as a truck driver. Therefore, the district court did not err when it granted summary judgment to Potter Trucking on the negligent hiring claim.
The argument of negligent retention has very different considerations. The Court indicated, “The difference between negligent hiring and negligent retention focuses on when the employer was on notice that an employee posed a threat and failed to take steps to insure the safety of third parties.”
Plaintiff Hartfiel testified he had heard about Mr. Allison “working over” a subcontractor while off-duty out at a bar. Mr. Allison admitted to smacking the subcontractor because he thought the subcontractor was going to hit him. The incident was not reported to Potter Trucking because it was off-duty and off-site, but the owner of Potter Trucking acknowledged the altercation had been brought to his attention via the gossip mill. He did not address the issue because it was not work related and he stated, “boys are boys”. The Court of Appeals held there were genuine issues of material fact regarding Mr. Hartfiel’s negligent retention claim, and overturned the district court’s granting of summary judgment.
My law partner has previously blogged about the importance of the hiring process. Many employers many not realize that they can be sued for negligent hiring and/or negligent retention. Take an opportunity to make sure you have a good hiring process in place. Also, don’t ignore issues between employees just because they don’t occur at work.