Negligent retention is a legal concept under employment law that refers to an employer’s failure to terminate or address the issue of an employee who poses a risk to others. This can happen when the employer is aware of or should have been aware of, an employee’s incompetence, unfitness, or dangerous behavior, but the employer does not take appropriate action to remove the employee from the workplace or prevent them from causing harm to others.
Negligent retention differs from negligent termination in that the latter refers to an employer’s decision to terminate an employee for reasons that are unlawful, unjust, or in violation of public policy. Negligent termination, also known as wrongful termination, can happen when an employer fires an employee based on discriminatory reasons, in retaliation for whistleblowing, or in violation of employment contracts or legal protections.
What Are Some Examples of Negligent Retention?
Negligent retention employment claims can arise from various situations where an employer fails to take appropriate action concerning an employee who poses a risk to others, and fraud is not always involved in negligent retention claims.
Here are some examples of negligent retention:
Sexual Harassment
An employer may be aware that an employee has a history of sexually harassing coworkers but fails to address the issue or terminate the employee. If the employee continues to engage in harassment, the employer could face a negligent retention claim.
Workplace Violence
An employer might be aware that an employee has a history of violent behavior, either in the workplace or outside of it. If the employer does not take appropriate action to manage the risk and the employee engages in violent behavior, causing harm to others, the employer may be subject to a negligent retention claim.
Incompetence or Unprofessional Conduct
If an employer knows that an employee is incompetent or consistently engages in unprofessional conduct but fails to address the issue or take corrective action, the employer may be liable for negligent retention if the employee’s behavior causes harm to others.
Substance Abuse
An employer might be aware of an employee’s substance abuse problem that affects their job performance and poses a risk to others. If the employer does not take steps to address the issue, such as referring the employee to a rehabilitation program or taking disciplinary action, they could be held liable for negligent retention.
Unauthorized Practice
Suppose an employer hires an individual to perform tasks requiring professional licensure or certification, such as a physician, attorney, or engineer. In that case, the employer could be held liable for negligent retention if they become aware that the employee lacks the proper credentials and fails to take appropriate action.
Driving-Related Incidents
If an employer is aware that an employee has a history of reckless driving or multiple traffic violations but continues to allow them to drive company vehicles or operate machinery, the employer could be held liable for negligent retention if the employee causes an accident or injury.
These examples illustrate that negligent retention claims can arise from various situations, and fraud is not always a factor. The central theme in negligent retention claims is the employer’s failure to act on known or reasonably foreseeable risks an employee poses, resulting in harm to others.
History of Theft
One more example of negligent retention could be if an employer knows that an employee has a history of theft, but fails to take appropriate action, and the employee goes on to steal from customers or other employees, causing harm or financial loss. In such a case, the employer could be held liable for negligent retention.
Are There Any Legal Consequences of Negligent Retention?
There are legal consequences for employers found guilty of negligent retention. If an employer negligently retains an employee who poses a risk to others, then that employer may be held liable for damages caused by that employee’s actions.
The legal consequences for negligent retention can be significant and may include the following:
- Compensatory damages: Employers may be required to compensate the injured party for economic and non-economic damages, such as medical expenses, lost wages, and pain and suffering resulting from the employee’s actions.
- Punitive damages: In some cases, if the employer’s conduct is found to be particularly egregious or reckless, the court may award punitive damages to punish the employer and deter future negligent behavior.
- Reputational harm: A successful negligent retention claim can result in negative publicity for the employer, damaging their reputation and leading to lost business or customer trust.
- Legal fees and costs: Employers found guilty of negligent retention will often be responsible for paying the plaintiff’s legal fees and associated costs in addition to their own legal expenses.
- Increased insurance premiums: A negligent retention lawsuit or successful claim may result in increased insurance premiums for the employer, as their liability risk is perceived to be higher.
- Regulatory penalties: In some cases, employers may face penalties or sanctions from regulatory agencies if the negligent retention violates industry-specific regulations, such as healthcare, finance, or transportation.
- Remedial actions: The court may require the employer to implement new policies, procedures, or training programs to address the issues that led to the negligent retention and prevent similar incidents in the future.
Employers can be held liable for damages resulting from negligent retention if it is determined that they knew or should have known about an employee’s incompetence, unfitness, or dangerous behavior and failed to take appropriate action to mitigate the risk.
To minimize the risk of negligent retention claims and the associated legal consequences, employers should implement comprehensive hiring practices, conduct thorough background checks, and respond promptly and effectively to complaints or concerns about employee behavior.
Do I Need a Lawyer for Help with a Negligent Retention Claim?
If you believe you have a claim for negligent retention, consulting with an experienced workplace attorney who can advise you on your rights and legal options may be helpful.
A qualified attorney can assess the strength of your case, help you gather evidence, and represent you in negotiations or in court. They can also guide you through the legal process, answer any questions, and ensure your rights are protected.
When choosing an attorney, look for someone with experience in employment law and a track record of success in similar cases. You may also want to consider their communication style, fees, and availability to take on your case.
LegalMatch can connect you with qualified attorneys in your area who specialize in employment law and negligent retention claims. When you submit your case details to LegalMatch, we will review your information and match you with attorneys who have experience handling cases like yours. LegalMatch allows you to compare attorney profiles and reviews, so you can choose the attorney who you believe is the best fit for your needs.
Additionally, LegalMatch offers a satisfaction guarantee, which means that if you are not satisfied with the attorney they have matched you with, they will match you with another attorney for free.
By using LegalMatch to find an attorney, you can save time and effort in searching for an attorney on your own. LegalMatch’s platform allows you to easily connect with qualified attorneys who have experience in the area of law that you need help with. This can help ensure that you can find the best attorney to represent you in your negligent retention claim.
