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Negligent Hiring, Retention and Supervision

When considering negligent hiring, supervision and retention, it is helpful to consider the pivotal 1993 case, Yunker vs. Honeywell, Inc. as an illustration of all three theories. In this particular case, Honeywell, Inc. employed a man who strangled a co-worker to death. He subsequently served a jail sentence form 1979-1984. Upon his release Honeywell rehired him as a custodian. When he began to express a romantic interest in his co-worker Kathleen Nesser, she avoided him. He then began to harass her on and off the job. Soon there after, Nesser found a death threat scratched into her locker at work. On July 11, the employee in question shot and killed Ms. Messer in her driveway. It would seem that the most obvious offense on the part of Honeywell, would be negligent hiring if, once an employee exhibits violent behavior, the company is discovered to have failed to conduct a proper background check before hiring the employee. Should an employee with a criminal record act out violently, that act might be considered foreseeable by the court simply because of the employee's history. However, the company could not be found liable for negligent hiring in this particular case because as a custodian, the employee did not have much contact with co-workers and the public. In other words, the extent of and employer's duty of reasonable care depends upon the responsibilities associated with the particular job.

The courts also discussed negligent supervision as a possible liability for Honeywell. Negligent supervision can be upheld if the employees are not properly supervised while on the job. The negligent supervision theory did not apply to the Honeywell case because the employee was not on company property or using company equipment when he shot Kathleen Nesser. Honeywell was not responsible for what the employee did off the job and as a result, the act was not considered foreseeable under the negligent supervision theory.

However, the court did find Honeywell liable for negligent retention despite disregarding the negligent hiring and supervision theories. If a company does not take action (investigation, reassignment, and termination) once it becomes aware that an employee is ""on notice,"" it can be found liable for negligent retention. Because this employee had a history of violence involving co-workers the company should take appropriate action against the employee before the situation escalated. Under the negligent retention theory, the employee's act was definitely foreseeable. Honeywell was responsible for providing Kathleen Nesser with a certain duty of care-that duty of care was neglected when the company failed to take action after Ms. Nesser found the threat scratched unto her locker.

The lesson to be learned from Yunker vs. Honeywell is that forseeability is a multifarious concept. Some people argue that all violent acts are foreseeable; some argue that no violent acts are foreseeable. However, when a violent act occurs in the workplace, opinions are academic; the company must be prepared to defend itself from negligence on all counts. Negligent hiring, supervision, and retention are all categories under which a company may be scrutinized should a lawsuit arise following an incident. Therefore, it is important for companies to make an effort to monitor and check current and future employee behavior. While background checks are important, it is equally important, it is equally important to educate managers and supervisors to keep their eyes and ears open for peculiar and/or irregular behavior. Employees should also be on the look out for changes in their co-workers behavior. Notifying the right person could mean the difference between a threat of violence and an act of violence. Similarly, management should treat all threats of violence very seriously, which means developing a plan of action to defuse the individual immediately upon hearing of the questionable behavior.

References: Littler, et al., eds. Terror and violence in the Workplace. Library of Congress, 1994; Westin, Perrin. ""S.F. Attorney Who Survived Massacre Now a Crusader Against Violence."" Workplace Violence Prevention Reporter Aug. 1998: 5.