By Corey Argust
What Kind of Risk Might Employers Face Because of an Employee’s (Unexpected) Behavior?
On September 15, 2016, the U.S. District Court for the District of Columbia allowed claims of negligent supervision and retention to proceed against the government contractors who employed the person responsible for the 2013 mass shooting at the Washington Navy Yard. DeLorenzo v. HP Enterprise Services, LLC, et al., Case 1:15-cv-00216-RMC (D.D.C. Sept. 15, 2016). In denying motions to dismiss the claims of negligent supervision and retention, the D.C. District Court found that certain instances of troubling behavior by the shooter after his hire had the potential to support claims of liability against the employers. This case underscores the potential liability that employers face for allegations of negligent hiring, supervision, and retention.
Employers risk liability for the conduct of supervisors and employees alike in a variety of situations. From claims of harassment or discrimination to employee theft or property damage, there are countless sources of potential liability that employers must confront on a daily basis. In the current legal environment, employers must remain proactive to effectively minimize the potential liability that accompanies the simple fact of employing workers.
If an employee’s harmful actions fall outside of the scope of employment, employers generally will not face liability for the damages caused by employee actions. Nevertheless, claims of negligent hiring, retention, and supervision may be brought against an employer even when an employee engages in harmful conduct that is not related to their employment. Under these theories of negligence, an employer owes a duty of care to others who are brought into contact with an employee who is subject to the employer’s control or supervision. In such situations, an employer may be liable for the harmful actions of an employee when the employer knew or should have known that the employee was likely to commit intentional or reckless actions.
In the Navy Yard case, the employer knew about a situation where the shooter’s behavior raised concerns that he would harm others and resulted in a request that a police officer be stationed nearby the shooter’s hotel on a business trip. In other words, the employers’ knowledge of incidents suggestive of violence toward others could support a jury’s decision that the employers failed to exercise reasonable care in retaining and supervising the shooter.
The court’s decision highlights the ever-present risk of liability that employers face for the harm caused by employees’ actions—even those completely outside of the scope of employment—and the importance of addressing those risks with effective employment policies and procedures. Employers can reduce their risk by implementing some of the following practices:
Review of Applicants
Conduct appropriate background research during the hiring process. Generally, employers in the private sector are not required to perform in-depth background checks of applicants for employment when making hiring decisions. For certain dangerous or sensitive positions, however, there may be industry-specific laws or standards for completing background checks (e.g., caregivers and security guards). When conducting background checks, employers should keep in mind that state or federal laws, such as the Fair Credit Reporting Act, may place limitations on the use of background checks, impose obligations on employers in connection with the use of background checks, and provide for civil penalties for the failure to follow such laws.
Training and Policies
After hire, properly train both employees and supervisors that a key job responsibility is to notify a supervisor of suspicious, unexpected, or prohibited workplace behavior. Implement and enforce appropriate standards of conduct in written policies, including those pertaining to workplace violence, and complaint procedures for the reporting of workplace threats, physical injuries or violence, and other misconduct.
Promptly investigate any complaints made by employees, customers, or business partners and take appropriate corrective action to address violations of policies and misconduct. Utilize independent investigators or seek legal counsel, if warranted. Consider implementing a suitable and effective review process to identify risks posed by employees and any ineffective employment policies.
By implementing the above or similar preventive measures, employers can greatly reduce the risk of liability stemming from employees’ unexpected and unwanted behavior.
About the Author: Corey Argust is an associate with PilieroMazza in the Labor and Employment, Litigation, and Government Contracts groups. He may be reached at firstname.lastname@example.org.