What is negligent retention?

Negligent retention is a cause of action that can be taken against employers who fail to take action against employees who’s abusive, belligerent or combative behavior causes harm to a coworker. The basis of most of these types of lawsuits is that the company did not conduct its due diligence by performing, which typically includes employment references, criminal background check or general background data that would have revealed the worker’s propensity for criminal or risky behavior. Another assertion commonly used in these cases is the claim that employers fail to take action to reassign or dismiss employees after they have evidence that the individual was an abusive, violent or dangerous person.

Generally, lawsuits rest on the premise that the employer did not act in a reasonable manner in permitting the individual with the history of wrongful or criminal behavior to be placed in a position where the person could pose a threat to others. The legal theory of negligent retention is not recognized in all states. In addition, where the legal theory is upheld, how the doctrine is applied can vary depending on the jurisdiction. Where applicable, courts have ruled that employers have a responsibility to exercise “reasonable care” in the background check process when hiring workers. In addition, the company must exercise the same degree of “reasonable care” in retaining a worker who has demonstrated criminal or abusive behavior.

Furthermore, the employers’ duty is not only to coworkers, but to the general public as well. Some courts has ruled a company can be held liable for negligent retention even if the employer did not have knowledge of prior incidents of criminal or abusive behavior. In these cases it is determined that because a worker’s friends and co-workers were aware of prior incidents, the company could be held liable for negligent retention because it had “corporate knowledge” of abusive acts on the part of the employee.

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