LIABILITY FOR NEGLIGENT HIRING AND RETENTION OF EMPLOYEES

On the evening of May 5, 2017, police discovered the bodies of Richard Field and Linda Bolanos, whom were two well-respected physicians, at their luxury South Boston condominium. Bampumium Teixera (“Teixera”), a former employee of Palladion Services, LLC (“Palladion”), the condominium’s former concierge and security company, presently stands accused of the murders of Dr. Field and Dr. Bolanos. In August 2017, a wrongful death lawsuit was filed against Palladion, among others. The complaint alleges that “because of his training with Palladion, Teixera was fully familiar with the layout of the [b]uilding, and was also aware that there was virtually no meaningful security for its residents.” The complaint also alleges that at the time that he was hired by Palladion, Teixera had already robbed a downtown Boston bank in August 2014 and then again in 2016 (although Teixera apparently did not confess to the 2014 robbery until 2016, after he had been employed by Palladion). Thereafter, Teixera was sentenced to jail and released the Spring of 2017.Palladion maintains that Teixera passed his initial background checks. However, the complaint alleges that Palladion never informed the condominium’s new security company, who took over security services at the condominium in early 2017, of Teixera’s criminal background.In Garcia v. Duffy, the court distinguished between negligent hiring versus negligent retention. “The principal difference between negligent hiring and negligent retention as bases for employer liability is the time at which the employer is charged with knowledge of the employee's unfitness. Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness, and the issue of liability primarily focuses upon the adequacy of the employer's pre-employment investigation into the employee's background… Negligent retention, on the other hand, occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.” Garcia v. Duffy, 492 So.2d. 435, 438–39 (Fla. Dist. Ct. App. 1986).In other words, “an employer must use due care to avoid the selection or retention of an employee whom he knows or should know is a person unworthy by his habits, temperament, or nature to deal with the persons invited to the premises by the employer. The employer’s knowledge of past acts of impropriety, violence or disorder is generally considered sufficient to foreworn the employer who selects or retains such employee in his service that he may eventually commit an assault, although not every infirmity of character, such, for example, as dishonest or querulousness, will lead to such result.” Foster v. The Loft, Inc., et al., 26 Mass. App. Ct. 289 (1988)(quoting Annotation, Liability of Employer, Other Than Carrier for a Personal Assault Upon Customer, Patron or Other Invitee, 34 A.L.R. 2d. 372, 390 (1954).In Foster v. The Loft, Inc., the defendant employer was held liable for failing to exercise reasonable care in retaining an employee whom had a criminal background after he had assaulted a bar patron, because the employer knew of the employee’s criminal record and the employer “did nothing to determine its nature or extent or to assure itself that [the employee’s] past criminal activities were not such, in the circumstances, as to present a danger to customer.” Foster v. The Loft, Inc., et al., 26 Mass. App. Ct. at 291.Employers may be held liable for not only performing inadequate or insufficient background checks, but for ignoring information about an employee’s background that it learns of during the scope of during the employee’s employment. As successful negligent hiring and retention cases may result in high damage awards, employers should develop a thorough hiring program and implement hiring procedures which include an employment application and background and reference check. Further, employers should conduct regular performance reviews at least on an annual basis.Employers should also have a clear and uniformly followed procedure for disciplining employees and to document complaints. Further, employers should promptly investigate all complaints which allege that an employee engaged in behavior which may be characterized as dangerous and/or harassing, and the employer should then maintain a written record of the investigation. If the employer determines that the employee is dangerous and/or otherwise poses a threat to third parties and/or to other employees, immediate responsive action should be taken, which may include termination of the employee and/or action to prevent the employee from returning to the workplace.For any questions regarding this article please contact Jennifer Barnett at jbarnett@meeb.com.