November 9, 2011

Never board the Titanic, but if you’re on it, bail!

Posted in Bullying, Negligence, Negligent Hiring, Negligent Retention tagged , , , , , , , at 10:26 am by Tom Jacobson

 The odds are pretty good that if the passengers and crew of the Titanic had known what was in store for them, they never would have boarded the ship.  Unfortunately for them, by the time they realized what was happening, it was too late, and 1,517 of them perished in the icy waters of the Atlantic.

Some employees can be like the Titanic. Their performance and/or attitudes are so ripped full of holes that they sink, bringing entire organizations down with them, or at least causing their employers to spend precious time and resources bailing everyone out.  The easy solution is to never board the Titanic. That is, never make a bad hire.  But sometimes employers need to find the life raft and dismiss problem employees.

It’s not only good business to make sure that employees fit well with the organization, but there are also liability reasons for this.  For example, if a Minnesota employer does not check an applicant’s background thoroughly enough, the employer can be held liable for negligently hiring an employee who later harms someone else.   That was the situation in the Minnesota case of Ponticas v. K.M.S. Investments where a landlord was held responsible when its property manager sexually assaulted a tenant.  The landlord had only done a cursory background check on the manager, but a better pre-hire investigation would have revealed the manager’s history of violent crime.

Similarly, if employees start to exhibit behaviors suggesting that they might harm others, their employers can be held liable for failing to protect those who are eventually harmed.  The Minnesota Supreme Court recognized this concept in the case of Yunker v. Honeywell, where an employee murdered a co-worker after a number of post-hire incidents suggested that the employee had violent propensities.

There is no crystal clear definition of what is a thorough enough background check to avoid a negligent hiring claim, nor is there a crystal clear definition of what employee behaviors are bad enough to trigger a negligent retention claim. However, the Minnesota courts have said that the test is whether the employer “knew or should have known” of the likelihood that the applicant or employee would harm someone.

Therefore, the extent of the background checks that are required depends on the sensitivity of the positions being filled. For jobs that put employees in positions where they can harm others, a more thorough background check is needed.

Likewise, the nature and severity of existing employees’ behaviors must be evaluated on a case by case basis. When their conduct is such that their employers “know or should know” of the risk of harm, appropriate discipline, up to and including discharge, should be taken.

Bon voyage!

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The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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