When Is It Improper Not to Fire?

Not only can employers be sued for improperly firing employees, they also can be sued for failing to fire employees. This problem arises when an employer becomes aware or should have become aware that an employee may cause harm to others, yet fails to take any action to prevent the employee from in fact causing harm.

If someone gets hurt, you could be liable. If the employee should subsequently injure another employee, a customer, or other person, the injured party may sue the employer for being negligent in retaining the dangerous employee. An employer's continuing obligation to guard against employing individuals with dangerous propensities is one that first arises during the hiring process.

Steps employers should take. Clearly, you need to screen people carefully before you hire them to find out if they have a past history of violence or erratic behavior.

A laundromat employee with a known history of drug use, extreme violence, and sexual offenses assaulted a female customer. The employer was liable for negligent retention because it was reasonable for the employer to know that a customer using the laundromat at night might be in danger in the presence of an employee with such a history.

To limit your risk of being sued for negligently retaining a dangerous worker, watch for any signs that an employee is unstable or unfit to remain in his or her position. Danger signals include stress, fatigue, mental illness, carelessness, aggressive or abusive behavior, and drug or alcohol use.

Investigate thoroughly any complaints of employee misconduct. In some situations, you may be able to effectively deal with the problem through training or by changing the employee's responsibilities. In others, however, your safest recourse may be to fire the employee. This is especially true with respect to employees who threaten or harass others.

Warning Your problems with a potentially dangerous employee do not necessarily end when you fire the employee or the employee quits. You need to be especially careful about what you say about the firing to prospective employers who contact you for an employment reference or to others. An uncertain line exists between what you may be obligated to disclose about the former employee's dangerous propensities, and what you cannot disclose without running the risk of the former employee suing you for defamation. For further details, see our discussion of providing employment references.