How to prevent growing risk of ‘negligent supervision’ suits

Thorough background checks can help you defeat any negligent hiring claim.

But what if applicants' background checks come up clean, yet they begin displaying troublesome behavior at your workplace. In such cases, you can be hit with a similar type of lawsuit, negligent supervision, if you don't act quickly to set things straight.

Supervision is your responsibility

The law requires you to use reasonable care when hiring and training employees. But you also have an obligation to supervise your staff, as well. A court can tag you with a negligent-supervision verdict if it's proved that your organization either knew or should have known that an employee's conduct would cause trouble or even indicated a tendency to harm others. (Negligent retention can occur if management keeps an employee on board who should have been fired.)

You can't foresee every harassment or violent incident. But courts will look at whether you took reasonable steps to identify and guard against the wrongdoing. Bottom line: It's not only about whether the worker actually committed the offense; it's about your company's actions beforehand.

Example 1: Say one of your supervisors notices an employee's borderline- harassing behavior. A manager in another department spots the same behavior a couple weeks later. And an employee complains that she noticed it, too and considers it offensive. That is a pattern, yet no one compared notes or reported what they saw.

Later, that same employee is accused of sexual assault. Did your organization know enough to be guilty of negligent supervision? A jury may decide that it did.

Example 2: What if management is aware that a worker has a serious alcohol problem and is drinking at work. The employee was disciplined for being drunk on the job and told that he'll be fired if it happens again. But he continues to drink and management does nothing.

Then, the worker is driving drunk in a company van and hits a pedestrian. Is your organization to blame? A court may say "Yes."

Avoiding liability: 4 steps

To head off liability for negligent supervision and negligent retention, tell managers to watch for anything that suggests sexual harassment, sex- or race-based favoritism, violent behavior or criminal activity, even when nobody lodges a formal complaint. Some additional tips:

1. Provide training in conflict resolution and communication. Super-visors need to know when to report certain behaviors and which behaviors to look for, such as verbal abuse, failing to cooperate with supervisors or co-workers and making inappropriate comments.

2. Conduct regular performance evaluations to address specific be-havior or job performance changes.

3. Make sure supervisors and staff are aware of help available, including your employee assistance program.

4. Provide multiple avenues to re-ceive complaints, and have unbiased managers investigate complaints so that no conflicts of interest exist. Investigate all complaints promptly and take decisive action.

Case study: Don’t wait for a complaint to act against a misbehaving worker

A banquet chef, Tyrone McRae, said his catering director (another male) sexually harassed him for several months after McRae declined the director's dinner invitation. The conflict erupted in a fight, after which the director fired McRae, but then rehired him the next day.
Soon after, the company transferred McRae to a lower position and then eventually fired him for misconduct, even though his new boss said he didn't deserve a termination. McRae sued for negligent supervision, and a jury awarded him $187,500 in compensatory damages and $4.8 million in punitive damages.
The key point: McRae could show that other supervisors were aware of the director's harassing behavior but took no action to stop it. Three points proved this negligent supervision:
1. The harassing director claimed higher management would protect him if he was ever accused.
2. The director repeatedly bragged about his sexual exploits in front of upper management.
3. Multiple witnesses testified that the director openly boasted that he favored attractive male employees.
The lesson: Those supervisors believed the director's actions weren't a problem because other employees hadn't complained. They were dead wrong. If you know a problem exists, fix it; don't wait for a formal employee complaint.
Note: McRae brought the negligent supervision claim because he'd missed the statute of limitations on a sexual harassment claim. A three-year statute of limitations in negligent supervision cases is typical. Plus, negligent supervision cases aren't subject to monetary caps on damages. (Daka Inc. v. McRae, WL 23018830, D.C. Court of Appeals, 2003)