Employment Practices Loss Prevention Guidelines - Chubb Group of ...

third parties as well as coworkers. The tort is now recognized in almost every
state. Generally, an employer may be liable for negligent hiring if 1) the
employer knew or should have known that the employee in question was
unfit for the position so as to create a danger of harm to third persons, 2)
the unfitness was known or should have been known at the time of hiring,
and 3) the particular unfitness proximately caused the claimed injury.
To minimize the risk of negligent hiring claims, an employer should assess
the nature of various jobs and their relationships to the public and other
employees. Depending on the risks involved in the position, the employer
should determine what information is necessary to assess whether an
applicant is appropriate for the position. For example, information that
includes reference or criminal background checks is appropriate to gather for
positions (e.g., security guards) involving security access or the use of
potentially dangerous weapons.
Negligent evaluation—This claim takes two forms. One is where an
employee who is not evaluated claims that the employer was negligent in not
performing a job evaluation, despite a duty to do so. The second is where an
evaluation is performed, but the employee alleges that it was done
negligently or improperly, and that if the employer had not been negligent,
it would have realized that the basis for discipline or discharge was improper.
Negligent evaluation claims are not recognized in most states. Nonetheless,
poorly completed or forgotten evaluations can give rise to, or be problematic
for, defamation, discrimination, or breach-of-contract claims.
Negligent training, retention, and supervision—Negligent training and
supervision claims assert that, had the employer exercised due care in
training and supervising an employee, an injury to an employee or third
party could have been prevented. Negligent retention claims assert that an
employer knew or should have known of problems with an employee that
indicated unfitness yet the employer failed to take corrective action.
Negligent retention claims frequently involve allegations of sexual
harassment, especially when there have been previous complaints against the
alleged harasser.
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