Separate from vicarious liability for acts within the scope of employment, an employer may be directly liable for its own negligence in selecting, retaining or supervising an employee.
Negligent hiring. The employer knew or should have known of a propensity creating an unreasonable risk in the position, and the harm was of the kind that risk made foreseeable. The inquiry required is proportionate to the position — more for roles involving access to homes, vulnerable people, vehicles or cash.
Negligent retention. Knowledge acquired after hiring — complaints, incidents, convictions — followed by continued employment without response.
Negligent supervision and training, where the employer failed to exercise reasonable care in controlling the employee.
Why it matters. These claims reach conduct outside the scope of employment, where vicarious liability does not, and they support punitive damages far more readily.
Tension with screening restrictions. Ban-the-box laws and limits on criminal history inquiries constrain what an employer may ask, and courts have generally not treated compliance with those laws as negligence. The reconciliation is a role-appropriate, lawful screening process applied consistently.
Documentation. Records of the screening conducted, and of the response to every complaint, are the defence.