NCJ Number
230155
Journal
Law and Order Volume: 57 Issue: 12 Dated: December 2009 Pages: 22-24,26,28
Date Published
December 2009
Length
5 pages
Annotation
This article advises law enforcement agencies on what they can do to prevent or protect themselves from lawsuits that claim a sworn officer violated a claimant's legal rights or otherwise caused harm because the employing agency was negligent in retaining him/her in a job position after knowing of his/her problem behavior ("negligent retention").
Abstract
"Negligent retention" can be charged when an employer knew, or should have known, that an employee was unqualified to be in the job position he/she held when the action in question occurred. The negligence issue arises when an agency can be shown to have allowed a behavior to continue, even when the supervisor or administrator knew it was negligent. This does not mean an employer must monitor every aspect of an employee's behavior; rather, it means that administrators and supervisors must be aware that specific actions must be taken to guard against and lay the foundation for a defense against negligent retention lawsuits. Appropriate policies, training, progressive discipline and the involvement of dedicated human-resource personnel are critical to an agency's ability to defend against negligent-retention lawsuits. Courts usually examine a number of factors when determining whether negligent retention of an employee has occurred. The court will typically examine what the employer knew or should have known about the employee's job performance. Evidence of early intervention to correct poor performance or misconduct is important. Channels of communication between employees and supervisors must be clear, and employee performance evaluations must be regularly conducted in order to identify employees with performance problems. When it is clear that a pattern of incompetence and misconduct has not been corrected through training and constructive guidance, then the issue of negligent retention arises if the employer fails to remove the employee from his/her position.