• T.C.A. Section 40-29-107 and Negligent Hiring
  • October 26, 2015 | Author: David E. Long
  • Law Firm: Leitner, Williams, Dooley & Napolitan, PLLC - Knoxville Office
  • In Tennessee, the employer may be liable for employee actions by virtue of not only respondeat superior but by independent acts of negligence as well. The difference between the two should be noted at the outset. Respondeat superior (”let the master answer”), or vicarious liability is a type of liability imposed without negligence. Generally speaking, in the master-servant arena, it is not negligence itself but “responsibility” imposed upon one obtaining a benefit from the actions of another even if the particular act was not beneficial (or actually harmful to a third party). Vicarious liability is, in large part, based upon the right to control the actions of another. The right to control in particular situations is one of fact, and thus the doctrine is incapable of “bright line” rules. See, cf., Tennessee Farmers Mutual Ins. Co. v. American Mutual Liability Ins. Co,, 480 S.W.2d 933 (Tenn. Ct. App. 1992)

    Vicarious liability is imposed upon employers when the tort committed is within the course and scope of the employee’s employment. The scope of employment is held to exist, if the alleged tortious act: (1) is the type of action the actor is employed to perform; (2) the action takes place substantially within certain limits of time and space; (3) if at least part of the action is motivated by the purpose to serve the employer’s interests; and (4) if force is utilized, the force is foreseeable by the employer. Id.  Foreseeability on the part of the employer is not a particularly onerous burden, depending on the facts. See, Sparks v. Westgate Resorts, Inc., 2007 U.S. Dist. LEXIS 79639, at **13-14 (E.D. Tenn. Oct. 26, 2007) (foreseeability imputed to employer when plaintiff mentioned in conversation to other employees that one of them might want to fight the plaintiff).

    On the other hand, negligent hiring is not imputed liability. Although the foreseeability analysis is similar, negligent hiring (or negligent entrustment) is a tort committed independently by the employer. In a situation of negligent hiring, the employer can be held liable even for actions by the employee outside the scope of employment. In keeping with the current legislative trend to strengthen employer defenses in a number of areas, such as retaliatory discharge, worker’s compensation, and other employment related doctrines, in 2014, the General Assembly amended T.C.A. sec. 40-29-107 dealing with certificates of employability. A certificate of employability is the process whereby a convicted criminal applies to the circuit court to issue an order to reinstate a convicted felon’s right to vote and enjoy other rights of citizenship. T.C.A. sec. 40-29-107 is a fairly comprehensive statute dealing with a number of aspects of that process, but this article will focus on how it pertains to negligent hiring and retention.

    Up front, the statute is limited in scope in dealing with prior felons. It does not, for example, address situations where an employer hires and retains “the town bully” who has just happened, by miracle or otherwise, to avoid felony prosecution and conviction. Obviously, at some level the statute is also an effort to deal with the problem of joblessness and recidivism among prior criminals who have served their time or otherwise have been pardoned or paroled. Moreover, there are a number of exceptions to the certificate being issued, excluding from its protection most notably violent crimes. Importantly, the protection afforded to employers does not protect them “from anything” the former felon may do, as it deals only with those prior convictions addressed by the court in the certificate.

    Subsection (n) of T.C.A. sec. 40-29-107 (1) and (2) allows introduction of evidence of the certificate by the employer in administrative or judicial proceedings when fault or negligence is an issue. The certificate may be introduced by the employer as evidence of “due care” in hiring, retention or other business activities “...if the person knew of the certificate at the time of the alleged negligence or other fault.” In such a proceeding, the certificate provides immunity to the employer with respect to negligent hiring claims if the employer knew of the certificate at the time the tortious act was committed.

    Subsection (n)(3) (A)-(D) departs from the stronger language of subsection (n)(2) by stating the employer may still be liable, but  only if four conditions are met: (A) after hiring, if the employee subsequently demonstrates danger or is convicted of a felony; (B) the employee is still retained after (A) occurs: (C) the plaintiff can prove actual knowledge on the part of the employer that (A) existed; and (D) the employer, after knowing about (A) willfully retained  the person as an employee.

    The certificate, as a public record, presumably may be introduced at the pretrial stage such as through a motion for summary judgment. T.C.A. sec. 20-16-101, passed by the General Assembly in 2011 to overturn Hannan v. Alltel Publishing Co., 270 S.W.3d 1, (Tenn. 2008) should help in that regard. T.C.A. sec. 20-16-101 did away with the “at trial” holding of the Hannan Court by reinstating the ability of the movant to show the nonmovant has no evidence to proceed at trial during the summary judgment stage of proceedings.

    Practically, there are a number of “homework” assignments employers should do on the front end. The “knowledge” requirement that employers must know of the certificate before the statute’s protections can be invoked is a “make or break” component of the statute’s defense for employers. Employers should require or have procedures in place to not only “know” about the certificate but also know what is in the certificate and the extent to which it may afford protection.