Under the doctrine of respondeat superior, if an employee causes harm to another person while acting within the scope or course of his employment the employer may be held liable for those injuries. If the employee is not working within the scope or course of employment when he commits a tortious act, the employer may not be held liable under this doctrine. However, employers may still be found liable to third parties under the theory of negligent hiring and retention. This blog post will discuss that theory of liability and explain the presumption against negligent hiring in Florida and how it applies to employers.
Liability for Negligent Hiring and Retention
The theory of negligent hiring and retention allows an injured third party to hold the employer liable for the negligent acts of their employee which are committed outside the scope and course of employment. The main difference between negligent hiring and negligent retention revolves around the time the employer discovers the employee’s unfitness. Negligent hiring occurs when the employer knew or should have known of the employee’s unfitness prior to the time the employee was hired. Negligent retention occurs when, during employment, the employer becomes aware or should have become aware of the employee’s unfitness and the employer fails to take steps to discharge, reassign, or engage in further investigation. In Florida, however, there is a statutory presumption against negligent hiring. It is found at Fla. Stat. § 768.096 and says that there is a presumption against liability for employers in negligent hiring cases when the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the work to be performed or for the employment in general. The presumption is applicable to all civil actions for the death of, or injury or damage to, a third person caused by the intentional tort of an employee. To be valid, a background investigation must contain a criminal background investigation on the prospective employee. Additionally, the employer conducting the background investigation must make a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment. The employer must also require the employee to fill out a job application form that includes questions concerning whether they have ever been convicted of a crime in addition to a question on whether the employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action.
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