If you are an employer in Texas, in some instances, you have a duty to properly hire, train, supervise and retain competent employees. If you breach that duty, you can be found liable to persons who are injured from your actions. Claims against an employer for negligent hiring are based on the direct liability of the employer and not the vicarious liability of the employer for the acts of the employee. The main advantage of a negligent hiring claim is that it does not require a finding that the employee was acting in the coarse and scope of his employment when the injury occurred. Instead the employer is liable if its negligence in hiring, supervising, training or retaining the unfit employee was a proximate cause of the plaintiff’s injury.
To prove a cause of action for negligent hiring it must be shown that the employer owed the plaintiff a legal duty to hire, supervise, train or retain competent employees and that the breach of that duty was the proximate cause of the injury to the plaintiff.
An employer has a duty to use ordinary care in determining whether a prospective employee should be hired. This duty requires the employer to make an inquiry into the competence and qualifications of the prospective employee and may require the employer to look into the employee’s criminal background. However, criminal background checks are not required for every employee. The need for a criminal background check largely depends on the nature of the job the employee is hired to do.
Sometimes the employer is required by statute to perform a criminal background check. Under Chapter 145 of the Texas Civil Practices and Remedies Code, an employer of persons hired to do in home service or in home delivery must either obtain a criminal history of the person or a certification that the person holds in good standing an occupational license by a Texas licensing authority that is required to perform a criminal background check in order to issue the license.
The duty to supervise the employee arises when the standard of care for a particular profession requires supervision or when there is evidence that the employee may pose a particular danger to others. For example, in Denton Regional Medical Center v. LaCroix, 947 S.W. 2d. 941 (Tex. App. – Fort Worth 1997, pet. denied.) it was held that a hospital had a duty to properly supervise an employee who administered anesthesia.
To prove that the employer failed to properly train the employee, the plaintiff must produce evidence showing that a reasonably prudent employer under the circumstances would have provided some training or would have provided more training than was given. However, the duty to train an employee does not arise if the employee is performing work the employee had performed previously.
An employer who retains an employee has a duty to remain knowledgeable of the employee’s competence and fitness. To prove a breach of this duty it must be shown that the employer knew or should have known that the continued employment of the employee would create an unreasonable risk of harm to others.
For the purpose of negligent hiring claims an employer breaches its duty if it hires an employee after discovering information that would cause a reasonable employer not to hire the employee or that would put the employer on notice that hiring the employee may create a risk of harm to others. To be the proximate cause of the injury, the risk of harm that caused the hiring to be negligent must be the same risk that caused the plaintiff’s injury. That is the plaintiff’s injury was somehow connected to the employee’s employment and the injury was a foreseeable consequence of the employer’s hiring, supervising, training or retention of the employee.
The statute of limitations for negligent hiring claims is generally two years. However, in a negligent supervision suit arising from an employee’s sexual assault, the statute of limitations is five years under Section 16.0045 of the Texas Civil Practices and Remedies Code. Also, claims for negligent hiring brought by co-employees for injuries caused by other co-employees may be preempted by the Texas Workers Compensation Act.
At The Law Office of Stephen O’Rear we represent people who have been injured by the negligence of others.