Connecticut Negligent Hiring Claims
The Connecticut Supreme Court has long recognized the common-law claim of negligent hiring. Shore v. Stonington, 187 Conn. 147, 155 (1982); Stiebitz v. Mahoney, 144 Conn. 443 (1957). Negligent hiring extends to any situation where a third party is injured by an employer’s negligence in failing to select an employee fit or competent to perform the services of employment. To prevail, the injured party must prove that the employer knew or should have known that the employee had a propensity to engage in the alleged conduct, and that he was reasonably likely to engage in such conduct. In such instances, the employer’s liability is not vicarious, but direct and personal.
The key element is foreseeability; whether the specific harm alleged by the injured party was foreseeable to the employer at the time of hire. More specifically, the test entails: (1) a determination of whether an ordinary person in the employer’s position, knowing what the employer knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the employer’s responsibility for its negligent conduct should extend to the particular consequences or particular injured party in the case.
Also, the employee must be acting outside the scope of his employment when causing the injury to a third party for the negligent hiring claim to have merit. This is an important element because if the employee is performing duties within the scope of his employment when the injury occurs, the principle of respondeat superior, or vicarious liability applies; not negligent hiring.
| Under the doctrine of respondeat superior, an employer is liable for the willful torts of his employee committed within the scope of the employee’s employment, and in furtherance of the employer’s business. The employer is held responsible for the acts of those whom it employs, performing acts done in and about its business, even though such acts may be directly in conflict with the orders which were given to the employee on the subject. In determining whether an employee has acted within the scope of employment, courts look to whether the employee’s conduct: (1) occurs primarily within the employer’s authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer. Harp v. King, 266 Conn. 747, 782-83 (2003). |
| To illustrate the difference, if the employee is hired as a delivery truck driver, and during his workday, while driving his assigned route, he has an accident that injures a third party, the third party can sue under respondeat superior. If the employee, however, drives 50 miles out of his assigned area for personal reasons, has an accident that injures a third party, and the employer knew or should have known of his propensity for careless driving at the time of hire, the injured party can sue for negligent hiring. |
Minimizing the Risk of Negligent Hiring Claims
Because negligent hiring claims focus on what the employer knew or should have reasonably known about the likelihood of a potential hires future bad acts, employers must use due diligence when making hiring decisions. Prudent steps to minimize the risk of negligent hiring claims include:
-Have all applicants complete a standard employment application, which requires an explanation of all employment gaps, the reasons for leaving, and each past direct supervisor’s contact information.
-Contact past employers to verify the information provided on the application. While some employers may be reluctant to share negative information about past employees for fear of defamation claims, the Connecticut Supreme Court has held that employers furnishing negative references will not be subject to liability for defamation, provided the statements are made with the consent of the employee, and are not made with malice. Malicious statements are those made with ill will, a desire to injure, or with actual knowledge or reckless disregard of the truth. Miron v. Univ. of New Haven Police Dept., 284 Conn. 35 (2007).
-Conduct a criminal background check. Connecticut employers are prohibited, however, from requesting arrest, criminal charge, or conviction information in cases where the records have been “erased” or a pardon has been granted. Conn. Gen. Stat. § 31-51i. Also, Connecticut employers are prohibited from conducting polygraph tests, except in the hiring of police and corrections officers. Conn. Gen. Stat. § 31-51g.
-Conduct credit checks to the extent permitted by state law. Aside from complying with the Fair Credit Reporting Act requirements discussed in the Federal Section of these materials, Connecticut has a separate requirement that prevents employers from requesting credit reports that contain information about the prospect’s credit score, credit account balances, payment history, or bank account balances as a condition of employment, except in limited circumstances. Exceptions include where the employer is a financial institution, the information is required by law, the employer reasonably believes the employee has engaged in specific activity that constitutes a violation of law related to the employee’s employment, the report is substantially related to the potential job, or the employer has a bona fide purpose for requesting the information that is substantially job related and is disclosed in writing to the prospect. Conn. Gen. Stat. § 31-51tt.
-When the job requires driving, do a motor vehicle check to determine any suspensions or revocations, DUI’s, or other serious infractions.
-Conduct a pre-employment drug screen. In addition to any restrictions imposed by the Americans with Disabilities Act, which are addressed in the Federal Section of these materials, Connecticut requires private sector employers to conduct any pre-employment drug testing in accordance with Conn. Gen. Stat. § 31-51t-aa. The law requires the employer to notify the prospect in writing of its intent to administer a drug test. Any urinalysis drug test must be administered using a reliable methodology, and any initial positive test result must be confirmed by a second test using a gas chromatography and mass spectrometry methodology, or an alternate method approved by the state Labor Commissioner. A copy of any positive test result must be given to the prospect.
-Detailed records of the steps taken to investigate the applicant’s history should be retained in the employee’s personnel file, along with any third party reports relied on in making the hiring decision.
