Employer Risks and Legal Charges from Retaining Unsuitable Employees

Retaining an employee who clearly does not fit their job role can expose employers to significant legal risks and charges. Drawing on two decades of experience as a personal injury lawyer, this article will explore how negligent hiring, workplace safety violations, and other factors can lead to legal ramifications for employers and potentially for others affected by the actions of unsuitable employees.

Liability for Negligent Hiring or Retention

One of the most significant legal risks is the potential for claims of negligent hiring or retention. This concept holds employers liable for not removing an employee who they knew, or should have known, to present a risk to others. If an unsuitable employee causes harm or damage, the employer may face serious financial consequences and legal action.

Workplace Safety and OSHA Violations

Employers have a duty to provide a safe working environment under the Occupational Safety and Health Administration (OSHA) regulations. If an unsuitable employee creates a hazardous situation leading to an accident or injury, the employer can be held liable for violating workplace safety regulations. This can result in fines, legal charges, and damage to the employer's reputation.

Professional Malpractice or Misconduct

In certain professions, such as healthcare or law, retaining an unsuitable employee can result in professional malpractice or misconduct. An employer could be held liable if they were aware of the employee's lack of qualifications or competence. This can lead to further legal challenges and damage to the employer's professional standing.

Public Risk and Liability

Employees in roles involving public interaction or safety, such as drivers, healthcare providers, or machinery operators, present a significant risk when unsuitable. Retaining such an employee and their potentially harmful actions can open the employer to lawsuits from those injured in the process. This can have a severe impact on the employer and the affected parties.

Reputational Damage and Indirect Legal Issues

Legal charges are not the only concern. Retaining an unsuitable employee can lead to reputational damage for the business. This can result in indirect legal issues, such as shareholder litigation in the case of publicly traded companies. Employers must carefully manage employee suitability to avoid these risks.

Constructive Dismissal and Employee Claims

In some cases, retaining an unsuitable employee could lead to a constructive dismissal claim. If an employee is kept in an unsuitable role without adequate support or training, and this leads to a hostile work environment, the employee may have grounds for a claim. Employers need to be aware of these possibilities and take action accordingly.

As an employer, it is crucial to regularly assess the suitability of employees for their roles. This includes providing necessary training, reassigning them to a more suitable role, or terminating their employment as a last resort. Proper documentation of these assessments and actions is essential in defending against potential legal claims. By taking proactive steps, employers can mitigate the risks associated with retaining unsuitable employees.