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Have You Hired The Right People?

December 29, 2015

Kentucky law has a relatively new body of law imposing liability onto a business for its own negligence in the hiring, retention and supervision of its employees. Such a claim arises when an employee (agent) of the business commits a tort. The commission of the tort, however, is not tied to whether the employee was acting within the scope of employment. Rather, the case focuses upon what the employer knew, or reasonably should have known, about the employee’s ability to perform the job duties for which she was hired and whether the employee’s placement in that job created an unreasonable risk of injury to the plaintiff. The law governing this topic is relatively new.

The seminal case Oakley v. Flor-Shin, Inc., 964 S.W.2d 438 (Ky. App. 1998) finally cemented the idea of negligence that had esoterically floated through the legal system for a number of years. Prior to Flor-Shin, an employer’s liability to an injured party was predicated upon respondeat superior. Under respondeat superior, the court focuses squarely on whether the tortious conduct was committed within the scope of employment. Flor-Shin, however, directly addressed the employer’s knowledge and the foreseeability of the unreasonable risk of harm (two factors not considered under respondeat superior). The Flor-Shin court found that Kentucky law clearly supported that every person has an obligation to every other individual to exercise ordinary care in its activities to prevent any foreseeable injury from occurring to another person. Why should a business be any different?

What do you know about your employees? What steps did you take before you hired an employee? Has any conduct transpired that has you questioning whether the employee might be better suited for a different role within the company? If you have not yet asked yourself these questions, you need to.