Under Minnesota law, employers can be held liable for injury or death caused by their employees if the employer was negligent in hiring the employee in the first place. Because of this liability, it is critical for Minnesota employers to carefully screen job applicants, especially those who could injure coworkers or members of the public based on the nature of their job responsibilities and interactions with others.
The Elements of Negligent Hiring
Minnesota recognizes a cause of action for negligent hiring and requires that the plaintiff generally establish the following four requirements:
- The employer must have owed a duty to the plaintiff to exercise reasonable care in its hiring of the employee in question;
- The employer must have breached that duty by hiring an employee whom it knew or should have known was unfit for duty;
- The plaintiff must have been injured; and
- The employer’s breach of its duty must have been the proximate cause of the plaintiff’s injury.
The Minnesota Supreme Court first recognized the tort of negligent hiring in Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983). In that case, the plaintiff was a female tenant in an apartment complex who was sexually assaulted by the resident manager of the complex. The resident manager was issued a passkey that permitted him to enter all of the apartments. It was determined that he used the passkey to gain entry to the plaintiff’s apartment and assault her. The Ponticas court stated that “[a]n employer has the duty to exercise reasonable care in view of all of the circumstances in hiring individuals who, because of the employment, may pose a threat to members of the public.” Id. at 911.
Two Duties Owed by Minnesota Employers
Two sources of direct duty running from the employer were recognized in Ponticas. First, the employer has a direct duty to those members of the public whom the employer reasonably might anticipate will be placed in the position of risk of injury as a result of the hiring. Ponticas, 331 N.W.2d at 910–11; see also Johnson v. Peterson, 734 N.W.2d 275, 277 (Minn. Ct. App. 2007) (“Negligent-hiring claims are . . . predicated on the fact that it should be foreseeable that an employee posed a threat of physical injury to others.”); LM v. Karlson, 646 N.W.2d 537, 544 (Minn. Ct. App. 2002).
Second, the employer has a duty to make a reasonable investigation into the prospective employee’s background, though the depth and scope of the investigation can be directly related to the severity of risk to which third persons are subject by an incompetent employee. Ponticas, 331 N.W.2d at 914; see also LM v. Karlson, 646 N.W.2d at 544 (stating that an employer has a duty to conduct a “reasonable investigation”). In Ponticas, the court noted that there is no absolute duty to check an applicant’s criminal record, and that the court will look to the totality of the circumstances to see whether the employer exercised reasonable care. Id. at 913.
Direct Nature of Employer Liability for Negligent Hiring
Negligent hiring is a direct cause of action against an employer, does not arise out of the employment relationship, and is an independent tort resting on the combined negligence of the employer and that of its employee. In determining whether the employer breached its duty in using reasonable care in its hiring of an employee, the courts will scrutinize the employer’s actions or omissions at the time of the hiring decision. This requires that the employer make a reasonable investigation of any employee who is to be hired, especially those employees who will be operating vehicles or dangerous equipment, or who may otherwise pose a danger to the public. A negligent hiring claim is attractive to plaintiffs’ personal injury attorneys because it is possible to establish the employer’s liability without showing that the employee was acting within the scope of employment when the employee caused injury or death to the plaintiff.
The Negligent Hiring Theory Applied to Motor Carriers
The case of Malorney v. B & L Motor Freight, Inc., 496 N.E.2d 1086 (Ill. Ct. App. 1979), although involving an extreme fact pattern, illustrates the risk of liability faced by motor carriers when their drivers commit acts outside the scope of employment. In Malorney, the trucking company’s driver picked up and sexually assaulted a hitchhiker. It was determined that the driver had previous criminal convictions for sexual crimes while employed with other trucking companies. The court denied the trucking company’s motion for summary judgment because the company had failed to verify the driver’s application response that he had no criminal convictions. The court held that an issue of fact existed as to whether the trucking company breached its duty to hire competent drivers by failing to investigate the driver’s non-driving background. The Malorney case is significant because it demonstrates how motor carriers may be held liable, under a negligent hiring theory, for actions that occur outside of the driver’s scope of employment.
Takeaways for Employers
Because Minnesota employers can be liable for accidents and injuries caused by their employees, if the employer was negligent in hiring an unfit worker, they should carefully screen all job applicants. In appropriate cases, this may include conducting Minnesota criminal background checks, implementing a Minnesota drug testing policy, and checking DMV records for prior automobile accidents if the employee will be operating a vehicle on behalf of the employer.
The employer should comply with the Minnesota Ban the Box legislation, EEOC Guidelines on Criminal Background Checks, the Fair Credit Reporting Act, and Minnesota Drug and Alcohol Testing in the Workplace Act when screening applicants to minimize the risk of negligent hiring liability.
If your company needs assistance developing a job applicant screening program, contact one of the Minnesota employment law attorneys of Trepanier MacGillis Battina P.A.
About the Author:
Minnesota employment law attorney Craig W. Trepanier practices extensively in the area of employment law and has experience drafting pre-employment screening procedures, criminal background check programs, drug and alcohol testing programs, and FCRA compliance programs for Minnesota employers. Craig may be reached at 612.455.0502 or firstname.lastname@example.org. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota.
Additional Information on Minnesota Employer Liability for Employee Negligence:
This is the second in a series of posts about the potential liability of Minnesota employers for accidents and injuries caused by their employees. This series applies to all employers, but is particularly relevant to Minnesota motor carriers, Minnesota household goods moving companies, and all Minnesota employers who require employees to operate vehicles in the course of their employment. The series includes: