Employers have used workers’ compensation statutes to narrow the claims that an employee can bring to a court by asserting as a defense that the claim must proceed through the state’s workers’ compensation law. The common law torts of negligent hiring and negligent retention are permitted where an employee’s tortious conduct does not result in liability under the theory of respondeat superior. Today, jurisdictions across the United States differ whether negligent hiring and negligent retention claims fall under their workers’ compensation laws.
Generally, workers’ compensation statutes require employers to have workers’ compensation insurance, which pays for employees’ injury expenses in exchange for a waiver their claims. In the United States, each state has passed its own unique set of laws the generally preempt the litigation of injuries to employees that arise from their employment. Workers’ compensation benefits both employers and employees: employees receive compensation quickly and employers are protected against work-related injury lawsuits. Workers’ compensation statutes were first legislated to compensate workers who were physically injured by dangerous working conditions but have expanded to include non-physical injuries and other work related negligence claims as well. A claim for negligent hiring is based on the principle that an employer is liable for the harm resulting from its employee negligently hiring improper persons for a position. Claims for negligent retention on are based upon the principle that an employer is liable for the harm resulting from an employee when the employer knew or should have known the hire was predisposed to committing a wrong against a third party. State judges determine whether this is the type of negligent conduct its legislators intended workers’ compensation laws to subsume.
The result is a crazy quilt of states permitting or prohibiting their courts original jurisdiction for claims of negligent hiring and retention. For example, New York, New Jersey, and Pennsylvania allow their courts original jurisdiction over these claims while Maryland, Connecticut and Florida do not. In New York both the state and federal courts have held that negligent hiring and retention are preempted by New York’s workers’ compensation law. Ferris v. Delta Air Lines, Inc., 277 F.3d 128 (2d Cir. 2001); Conde v. Yeshiva Univ., 16 A.D.3d 185 (N.Y. App. Div. 2005). However, in Maryland, the Court of Special Appeals found “no reason to abandon those general tort principles in favor of preemption under the [Maryland worker’s compensation law.” Gasper v. Ruffin Hotel Corp. of Maryland, Inc., 183 Md. App. 211, 233 (2008) aff’d, 418 Md. 594 (2011). This inevitably affects the rights of workers across the country and increases unpredictability in the courts.