An employer can be liable for the actions of its employees, even if committed outside the course and scope of the employment.  The two causes of action are negligent hiring and negligent retention.  The principle difference between a negligent hiring and a negligent retention claim is “the time at which the employer is charged with knowledge of the employee’s unfitness.”

In a negligent retention action, a plaintiff must show:

  1. The employer was required to make an appropriate investigation of the employee and failed to do so;
  2. An appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general; and
  3. It was unreasonable for the employer to hire the employee in light of the information he knew or should have known.

In Florida, there is a presumption that an employer is not negligent in hiring an employee if the employer:

  1. Obtained a criminal background check from the Department of Law Enforcement;
  2. Made a reasonable effort to contact prior employers and references;
  3. Required the employee to complete a job application that included questions related to the employee’s criminal background and civil liability for intentional torts;
  4. Obtained a check of the driver license record of the employee if a check is relevant to the work the employee will perform; or
  5. Interviewed the employee.

In a negligent retention action, a plaintiff must show:

  1. During the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and
  2. The employer failed to take further action such as investigating, discharge, or reassignment.

However, in either a negligent hiring or negligent retention action, the tortious conduct of the employee must have been foreseeable to the employer to hold the employer liable.  An employee’s wrongful conduct that is unrelated to the conduct that ultimately harmed the plaintiff will not be enough.

To avoid liability, employers should have procedures in place to conduct an appropriate investigation before hiring an employee and to monitor an employee once retained.

Megan A. McNamara is an attorney with the law firm Fox Rothschild LLP.  Megan practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida.  Megan focuses her practice on commercial and business litigation throughout Florida. You can reach Megan at (561) 804-4445 or