In Minnesota, courts recognize causes of actions against employers based on negligence, which include negligent supervision and negligent retention.
Liability for negligent supervision for an employee is imposed under a theory of respondeat superior. Minnesota Court of Appeals has stated, “the basis of liability is that the tortious act is committed in the scope of employment; whether the employer is at fault is immaterial.” Oslin v. State of Minn., 543 N.W.2d, 408, 414 (Minn. Ct. App. 1996). To prevail on a claim of negligent supervision, a plaintiff must prove that the employees conduct was foreseeable and that the employer failed to exercise ordinary care when supervising the employee. In addition to evidence that an employer has failed to exercise ordinary care when supervising an employee, an plaintiff must also show evidence that he or she has suffered physical injury as a result of the negligent supervision.
Smith v. DataCard Corp.
In the case of Smith v. DataCard Corp., 9 F. Supp. 1067 (D. Minn. 1998), plaintiff Smith, an African-American woman who worked as an evening shift janitor for DataCard Corp, was terminated after 4 years of employment. Smith claimed that DataCard employees subjected her to continuous sexual and racial harassment.
Smith claims that this harassment started to intensify after she started to complain to her supervisor, Jack Reher. Smith complained that other employees were dealing drugs, bringing in handguns, and then threatening her if she ever told management. Smith also claims she was subject to physical abuse during her employment. Smith ultimately sued DataCard for various causes of action, including negligent supervision.
Ultimately, the court granted summary judgment in favor of DataCard because Smith had testified that she experience no physical harm during her time at DataCard even though there was evidence that she had suffered electric shock from a vacuum cleaner and experienced a nosebleed. The court reasoned that dismissal of the negligent supervision claim was warranted because DataCard had exercised reasonably care when it had repaired the vacuum cleaner that had shocked her, and offered other resolution that caused her nosebleed.
Negligent Retention and Hiring
Additional negligence theories that employees bring against employers are negligent retention and hiring. Both of these negligent theories are closely related. Under both:
[L]iability is predicated on the negligence of an employer in placing a person with known propensity or propensities that should have been discovered by reasonable investigation in an employment situation in which because of the circumstances of the employment it should have been foreseeable that the hired individual posed a threat of injury to others.”
Ponticas v. KMS Inv., 331 N.W.2d 907, 911 (Minn. 1983).
The major difference between negligent hiring and retention is basically the timing. Negligent hiring deals with an employer’s duty to use reasonable care in hiring an employee and negligent retention involves the employer’s duty of reasonable care in retaining adequate employment.
Interestingly, the Minnesota Supreme Court has held that an employer’s duty can be used by employees to establish employer liability for harm caused by other employees. But, the theories of negligent hiring and retention do not give an employee free reign to bring any cause of action for all risks an employee poses to a co-employee. Instead, courts have held that an employer is only liable if the employer knew or should have known that an employee would harass or otherwise harm another employee.
Grozdinich v. Leisure Hills Health Center Inc.
In Grozdinich v. Leisure Hills Health Center Inc., 25, F.Supp. 953 (D. Minn. 1998), the court looked at the elements of negligent hiring and retention. In that case, Leisure Hills, a healthcare facility, hired a supervising nurse, John Parson, who had previously served as a nurse at a different employer. Parsons had resigned from a previous job because of accusations of sexual harassment. The former employer accepted Parson’s resignation in exchange for the former employer to keep the matter of the sexual harassment accusations confidential and to keep good a reference for Parson.
When Leisure Hills was about to hire Parson, it contacted Parson’s former supervisor. The former supervisor said Parson was “a very good clinical nurse,” “had good assessment skills,” and “a good relationship with patients.” The former supervisor did say however that Parson had “trouble dealing with employee issues.” Leisure Hills did not inquire further into what the former supervisor meant by “trouble dealing with employee issues.” Sometime later after Parson was hired and put in charge of other nurses at Leisure Hills, he sexually harassed a subordinate three separate times.
After the third incident, the subordinate filed criminal charges and complained. Parson later admitted to sexually harassing the plaintiff/subordinate. Parson was suspended, and then terminated. The court did not dismiss the subordinate’s negligent hiring and retention claim because he believed there was evidence on the record showing Leisure Hills did not conduct a proper investigation of Parson’s past employment history, especially given the fact that Leisure Hills was told Parson had “trouble dealing with employee issues.”
The court ultimately dismissed the negligent retention claim because the plaintiff had invoked the Minnesota Human Rights Act, which preempts the common law negligence claims. However, this case shows that an employer can be held liable for inadequate investigation and negligent hiring and retention of employees.