Can I be Sued for not Firing Some Employees?
This problem arises when a manager becomes aware that one of her employees may cause harm to others yet fails to take any action to prevent the employee from in fact causing harm.
If the employee should subsequently injure another employee, a customer, or another person, the injured party may sue the employer for being negligent in retaining the dangerous employee (called "negligent retention"). The situation first arises during the hiring process—when candidates’ past history has to be well screened for evidence of violent or erratic behavior. But problems can occur, as well, after an employee is on board. Personal problems can find an outlet through aggressive or abusive behavior or drug or alcohol use. Sometimes advancement in a company can transfer someone without critical qualifications or with a history of problems into a position where he might be dangerous to others.
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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 position. Candidates for promotion to positions that place them in very different venues should undergo a reference check where any questions exist.
Of course, investigate thoroughly any complaints of employee misconduct. In some cases, you may be able to effectively deal with a problem through training or by changing the employee’s responsibilities. In others, however, your safest recourse may be to fire the employee.