What is Negligent Retention?
Negligent retention occurs when an employer fails to take appropriate disciplinary action (i.e., termination) against an employee who the employer knew or should have known was unsuitable and the employee's actions cause harm to others. This is most common when an employer was aware of the offending employee's proclivity for harassment, violence, or fraud.
What are the elements of Negligent retention?
Negligent retention claims frequently centre on whether the employer was aware of or should have been aware of the employee's unfitness for duty.
This is often a very fact-specific question, but the courts have identified a number of elements that may be relevant to such a determination, which are as follows:
- The overall work history of the employee.
- Whether or not the employer received any complaints about the employee.
- The extent to which the employee's negative behaviours were related to his or her job.
- Whether any managers or supervisors were present when the alleged negative activities occurred.
What is the difference between negligent hiring and negligent retention?
Negligent retention differs from negligent hiring only in terms of when an employer discovers, or should have discovered, an employee's unsuitability for the job. The failure in negligent retention claims occurs when an employer continues to employ an unsuitable employee.
Steps the employer should take up to address inappropriate employee behaviour
A related issue that frequently arises in the context of negligent retention is the nature of appropriate employer action. Even if an employer becomes aware of a negative behaviour by an employee, the employer will only be held liable for negligent retention if the employer fails to take appropriate action to address the behaviour.
The following are examples of appropriate action:
- Employee disciplinary action.
- Removing the employee from a position where he or she could endanger other employees or members of the public.
- Increasing supervision of the employee.
- Employee dismissal