Negligent Retention Claims May Become Viable When Dangerous Employees Are Not Fired

Employers can learn some valuable lessons from the firing of Rutgers men’s basketball coach Mike Rice on April 3, 2013. The allegations against Coach Rice were that several video clips showed him pushing players, throwing basketballs at their heads and shouting homophobic slurs at them during practice. The Athletic Director, Tim Pernetti, became aware of the same video clips in December 2012 as part of an investigation into Coach Rice’s conduct on the court. According to various media reports, Mr. Pernetti did not share the substance of the video clips with Rutgers President Robert L. Barchi when the decision was made not to terminate Coach Rice in December 2012. Mr. Pernetti decided a lesser sanction was appropriate and it involved a suspension of three games, a fine of $50,000 and a requirement that Coach Rice attend anger management classes. On April 5, 2013, Mr. Pernetti resigned as the Athletic Director at Rutgers under intense pressure from a number of sources.

There are a number of lessons employers can learn from the mistakes made by Rutgers. First, supervisors that delegate the responsibilities to investigate any employment allegations, including but not limited to, claims of misconduct, discrimination, harassment or retaliation, should make sure a complete report is provided to the decision maker(s) so an informed decision can be made based on all of the facts. If President Barchi had been provided the video clips by Mr. Pernetti, it is possible that Coach Rice would have been terminated in December 2012 and not retained for another 5 months. It is also possible that President Barchi would have still agreed with the lesser sanctions given to Coach Rice but he would have done so based on a full record.

Second, employers that knew or should have known that an employee was dangerous and likely to harm others may be liable for the tort of negligent retention. There is conflicting authority in Virginia as to whether negligent retention is a recognized cause of action. Compare Dixon v. Denny’s, Inc., 957 F. Supp. 792, 797 (E.D. Va. 1996) (holding that “a claim for negligent retention is not actionable under Virginia law. Further, the Virginia Supreme Court has refused to impose on employers a duty which would extend beyond the initial decision to hire”) (citation omitted), with Heckenlaible v. Virginia Peninsula Reg’l Jail Auth., 491 F. Supp. 2d 544, 554 (E.D. Va. 2007) (stating that “[t]he tort of negligent retention is based on the principle that an employer is liable for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [others]”) (citing Southeast Apts. Mgmt., Inc. v. Jackman, 257 Va. 256, 260-61, 513 S.E.2d 395, 397 (1999)).

As a general rule, employers should not be in the business of rehabilitating dangerous employees. Employees that harm others or show signs that they may harm others should be terminated by the employer only after the employer obtains all of the facts. Gathering all of the facts does not require an employer to retain the dangerous or potentially dangerous employee on the premises while the investigation is ongoing. The prudent thing to do is to suspend the employee and forbid the employee from accessing the employer’s property, computers systems or contacting any witnesses. Employers should take prompt, remedial action as soon as possible in these types of cases. If there is any hint of potential workplace violence from the dangerous employee, employers should not hesitate to hire security to protect the decision makers and other employees. In many cases, it is worth the extra money to have a private investigator monitor the activities of the dangerous employee that has been terminated for a number of days. A dangerous employee does not suddenly become safe once they are fired by the employer. In some isolated cases, the dangerous former employee comes back to the workplace or shows up at the private residence of the decision maker to exact revenge. Employers must be vigilant when dealing with dangerous and potentially dangerous employees.

Retention of dangerous or potentially dangerous employees does not make much common sense. Even if employers may not have a legal obligation to protect their employees from dangerous or potentially dangerous employees it’s just good business to make sure that the workplace is safe and free of this type of individuals.