Virginia allows plaintiffs to recover from the employer of an individual who negligently harms them on three theories: negligent hiring, negligent retention, and vicarious liability.

Negligent Hiring & Retention

Negligent hiring occurs when an employer negligently employs someone who is unfit for the position and therefore places others in an unreasonable risk of harm. An employer must exercise reasonable care in deciding who to hire. Often, this means carrying out a reasonable investigation on all applicants. Such investigation includes checking the applicant’s background, experience, and competence. Negligent retention occurs when an employer neglects to fire an employee who has proved to be dangerous. An employer may be liable for negligent retention even in a situation where the employee’s negligence is unknown if the employer, through the exercise of reasonable diligence, should have discovered the employee’s negligence.

An employer can only be liable under negligent hiring or retention for an employee’s actions taken during the time of employment. An employer will not be liable for any actions taken after the period of employment has ended.

Vicarious Liability

Another ground on which an employer may be liable for injuries caused by its employees is through the theory of vicarious liability. This theory holds employers responsible for the negligent actions of employees when such actions are performed within the scope of employment. To be within the scope of employment, the act must be part of the employer’s ordinary course of business or directed by the employer. The employee also must be trying to further the employer’s interests. Intentional torts, like battery, are purely personal acts that do not further the employer’s interests. Therefore, an employer will not be held liable for an employee’s intentional tort, even if performed while the employee is at work.

Generally, vicarious liability only works to make an employer responsible for the negligent actions of employees, not independent contractors. An independent contractor generally has control over how a job gets completed, whereas an employee is under the control and direction of the employer. Other factors to consider in distinguishing between an independent contractor and an employee include the method of payment, who supplies the tools and equipment needed, and the skill required. Typically, independent contractors (1) are paid according to work done rather than on a regular hourly or salary basis, (2) supply their own tools, and (3) have specialized skills.

There are two main exceptions by which an employer can be vicariously liable for the acts of an independent contractor. First, the employer will still be subject to liability if the employer hires the independent contractor to perform a non-delegable task. Non-delegable responsibilities usually relate to public safety. For example, property owners have a non-delegable duty to make sure their property is reasonably safe (whether it is a private or public space) and the government has a non-delegable duty to maintain public roadways. Therefore, if a homeowner hires an independent contractor to fix a leaky roof, but the independent contractor does so negligently, and part of the ceiling falls on a visiting guest, the homeowner may still be liable for the harm to the guest.

Second, the employer will still be subject to liability if the employer hires the independent contractor to perform ultra-hazardous or inherently dangerous work. An inherently dangerous activity is one that remains risky despite any exercise of reasonable care. Some typical examples of inherently dangerous activities include handling toxic or hazardous materials, using explosives, and performing demolition work. Therefore, a city that hires an independent contractor to demolish a building may still be liable for any injuries caused by the demolition.

Even though employers usually are not liable for the negligent acts of independent contractors (with the limited exceptions mentioned above), employers can be liable for the negligent hiring and retention of incompetent independent contractors who harm someone during their work.

Contact Davis Law Group for Your Employment Law Questions

There are multiple ways employers may be held liable for the actions of their employees and, in some cases, independent contractors. If you would like advice on how to minimize liability, make an appointment with one of our attorneys today.