Negligent Hiring as a Cause of Action in New York

Negligent hiring is a recognized cause of action in New York, holding employers accountable when their failure to properly vet employees results in harm to others. For a successful claim, the plaintiff must prove that the employer’s lack of reasonable care in the hiring or retention process led to the employee causing foreseeable harm. Below are the key elements of a negligent hiring claim.

Foreseeable Harm

An employer may be held liable for negligent hiring when it places an employee in a position to cause foreseeable harm—harm that the injured party likely would have been spared had the employer taken reasonable care in the hiring or retention process. This means the employer must have failed to exercise the level of care a reasonable person would in similar circumstances, resulting in the employee’s harmful conduct.

Employer’s Knowledge or Reason to Know

To establish a claim for negligent hiring, the plaintiff must show that the employer knew or should have known about the employee’s propensity for the type of conduct that caused the injury. The employer does not need actual knowledge of the employee’s specific history but may be held liable if they ignored warning signs or circumstances that should have prompted further investigation.

Duty to Investigate

Although employers in New York do not have a general duty to conduct a criminal background check on every prospective employee, a duty to investigate arises when facts are known that would lead a reasonably prudent employer to investigate further. For instance, if an employer becomes aware of behavior or information that raises red flags about a potential employee’s fitness for a particular role, the employer must take reasonable steps to investigate.

Reasonable Investigation

A reasonable investigation may include more than a criminal background check. It could involve checking an applicant’s references or verifying prior employment to assess their suitability for the job. In cases where such investigations were not conducted, courts have found issues of fact as to whether the employer breached its duty.

Negligent hiring claims ensure that employers take reasonable precautions to protect others from foreseeable harm. Failing to investigate properly can lead to significant liability if an employee’s conduct results in injury.

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“An employer may be held liable for negligent hiring where it places an ’employee in a position to cause foreseeable harm, harm [of] which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee.’ (Sheila C. v Povich, 11 AD3d 120, 129 [1st Dept 2004]). A cause of action for negligent hiring requires a showing that an employer knew, or should have known, of the employee’s propensity for the conduct which caused plaintiff’s injury. (Id. at 129-130). Although an employer does not have a general duty to check whether a prospective employee has been convicted of a crime (Yeboah v Snapple, Inc., 286 AD2d 204, 205 [1st Dept 2001]), a duty to investigate a prospective employee’s background exists when an employer knows of facts that would lead a reasonably prudent person to investigate (T.W. v City of New York, 286 AD2d 243, 245 [1st Dept 2001]). A reasonable investigation need not consist only of a criminal background check, but may include the checking of references. (See e.g., Andersen v Suska Plumbing, 246 AD2d 475 [1st Dept 1998] [issue of fact existed as to whether employer breached duty by failing to check employee’s references])”. Mishkin v. Insomnia Cookies 82nd, LLC, 2019 N.Y. Slip Op. 31312, 6 (N.Y. Sup. Ct. 2019).