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Negligent Retention

Written by Kelly Sharp

The hiring process took a year and a half. The background check involved everyone, including neighbors and former teachers. The physical was exhaustive and invasive, and the physiological evaluation was more than personal. The academy was five long months of intensive study, followed by both a mentor and a field training officer for probation and training. Now the officer is finally on his own, and you (as the supervisor) breathe a sigh of relief. You no longer have to worry about his performance or behavior. Right?

Wrong. Now you have to be on guard for negligent retention.

What exactly is negligent retention? How does it affect the administrator, supervisor or trainers? In its simplest form, negligent retention can be charged when an employer knew, or should have known, that an employee was unqualified to be in the position he was working in, allowed him to stay in the position anyway, and an injury or violation of rights was caused by the employee in the normal scope of duty.

Negligent retention does not imply that punitive action is waiting against an agency for an employee who makes a mistake. Mistakes are to be expected when dealing with human beings. 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.

Negligent retention claims can fall under a broad spectrum of definitions and can encompass a variety of topics, from the officer who fails to complete Emergency Vehicle Operator Course (EVOC) training and then crashes during a pursuit, to the supervisor who looks the other way when an officer may be drinking on the job, to the administrator who brushes off complaints of sexual harassment with excuses like “He’s just being a guy” and “You’re just too sensitive.”

Imagine the front page of the local newspaper with the words “Police Department Kept Bad Cop” in 3-inch tall letters.

Does this mean that an employer has to monitor every aspect of an employee’s behavior? Not necessarily. What it does mean is that administrators and supervisors need to be aware that negligent retention lawsuits are a reality and that policies, training, progressive discipline and the involvement of dedicated human resources personnel are crucial to an agency’s ability to defend against charges.

What Did You Know?

While the legal verbiage can be complicated and varies from state to state, courts usually review a number of factors to qualify a situation as negligent retention. These factors begin with what the employer knew or should have known about the behavior taking place.

Supervisors and trainers need to have clear guidelines on what to look for and how to help an employee who may be struggling. Early intervention in a problem can prevent it from escalating into a lawsuit. Is the employee using an unusual amount of sick leave? Are citizen complaints increasing? Is he coming in late or leaving early? Is he making the same mistake over and over, or making a series of mistakes?

Often, the first indication of a problem will come from the other employees. Agencies must ensure a clear line of communication between the employees and the supervisors. An employee who notices erratic behavior in a coworker needs to feel free to bring those concerns to management without fear of censure and needs to know that those concerns will be taken seriously.

In this litigious society, employees pay close attention to how the supervisor responds to their concerns. Be assured that if the supervisor does not pay attention to the concerns, chances are employees will make note of the lack of response.

Unfit but Still On-Duty?

The next factor for consideration is that the employer allowed an unfit or incompetent employee to stay in the position. All employees make occasional mistakes, which puts the supervisor in the position of having to determine the severity of the situation. If it is a simple or trivial mistake with little or no impact on the organization, a verbal warning consisting of “Try to improve in this area and not make the mistake again” will suffice.

Questions of negligent retention arise when an employee makes a series of mistakes or shows a pattern of erratic behavior. Under these circumstances, it is imperative that the supervisor takes effective steps to eliminate or reduce the potential risk associated with the problem.

Immediate investigation of complaints of inappropriate behavior is the first step, but follow-up is crucial. If the supervisor found that there was a problem, what was documented as a solution? Was additional training offered? Was there a verbal or written warning? Evaluations and disciplinary and training records are vital documents to defend against a negligent retention lawsuit.

Intentional or Negligent Act

This is all brought into sharp focus when an employee injures a third party through an intentional or negligent act, whether a physical injury or an injury through deprival of constitutional rights. In its simplest terms, this is a person filing a lawsuit. This could be a fellow employee who has been sexually harassed, a citizen who believes his civil rights were violated, or a parent whose child was injured during a pursuit.

The real focus of the legal action will be the employer’s retention of the unfit employee and the fact that this retention contributed to the third party’s injuries. Can the claimant prove that the action resulted from behaviors the agency was aware of and allowed to continue?

The factors then include whether the wrongful actions occurred in the scope of, and over the course of, the officer’s employment. Was the wrongful action a result of performance during the course of actual employment? If an officer in a pursuit crashes into a car, is he acting in the scope of his employment? If that same officer, on the way home from work, is speeding in his patrol car and crashes into another car, is that considered to be during the course of employment?

The answer to this question can be complicated, and the variations involved in finding an answer are best left to the legal professionals. They can determine if the action taken by the employee was actually part of the job.

While it can seem overwhelming, an agency can take simple steps toward protecting itself from negligent retention lawsuits. First, follow the adage of “If it is not written down, it didn’t happen.” Begin with polices that clearly define expected standards of acceptable behavior. Consider adding policies that spell out what is not acceptable behavior.

While it seems reasonable to assume that adult employees should realize that behaviors such as drinking on the job, drug use and theft are not allowed in the workplace, these policies add an additional level of protection. Each policy should be signed by the employee as read and understood, eliminating the possibility that he can use the “no one ever told me” defense.

It is important to keep a paper trail documenting the department’s training policies and records. The policy spells out exactly what is required, and the training records verify that the required instruction was provided. For example, if EVOC is required yearly for each officer, there should be a policy explaining the reason for EVOC training and the acceptable performance standard. The training manager then documents when EVOC training was provided and the score received.

After the policy is written and training provided, the officer must be evaluated using specific guidelines of behavior. A successful evaluation system reviews behaviors that are cross-referenced to policies and training and does not leave any area open to interpretation or feeling. This series of checks and balances assures that problematic behavior can be caught immediately.

In this system, when Officer Exemplary crashes during a pursuit, the agency has a documented paper trail showing that it has done the necessary training to ensure the protection of life and property. There is a policy in place on the topic of pursuits, training provided on that policy, and an evaluation system which shows that the deputy has been evaluated successfully on the behaviors necessary during a pursuit.

Agencies that fail the negligent retention test are those that do not follow through with the series of policy, training and evaluation. In this scenario, Officer Problem has managed to skip EVOC training repeatedly and has been disciplined for violating other areas of the pursuit policy. When Officer Problem crashes during a pursuit, the agency is open to questions about negligent retention, based on the charge that it knew the employee was unfit, yet chose to keep him in the position.

These two scenarios raise the question of how an agency keeps an employee who has made mistakes, yet still protects itself from charges of negligent retention. This is where the concept of progressive discipline enters into the equation. This type of discipline system generally follows the line of verbal warning, written warning, suspension and termination. Under a progressive discipline program, supervisors are able to separate the officer who made a mistake and requires additional training from the officer who is becoming a problem for the organization.

Administrators and supervisors, however, need to understand that progressive discipline may not be enough. Negligent retention rests on the concept that the agency knew the employee was incapable of doing the job and kept him anyway. In addition to acknowledging the problem, the agency needs to be able to show what was done to correct the problem. This is where policies, training and evaluations come into play.

In the scenario of the pursuit, does the policy say what will occur if the deputy fails to complete EVOC training? How many EVOC trainings are deputies allowed to miss before progressive discipline kicks in? What is the discipline? For discipline to be effective, it needs to be measurable and standardized.

For example, the policy states that deputies are required to complete one EVOC training every three months, and those who do not will be suspended from driving until it is completed. Officer Problem misses EVOC, is suspended until the next training and has this reflected in his evaluation.

This documentation shows that the agency had a policy in place, acknowledged the problem immediately, created a solution to prevent the employee from driving until the situation was resolved, and documented this in an evaluation. If the situation is resolved at this point, it is the end of the matter. If there is a repeat of the performance, the progressive discipline is advanced, and the agency can show it was working to avoid having Officer Problem in a position to injure a third party.

One challenge in overcoming the question of negative retention is what to do with the more esoteric or emotional situations employees may find themselves in. What does a supervisor do with an employee who suddenly becomes short-tempered, argumentative and hostile toward coworkers? Does an agency have a responsibility to monitor the emotional well-being of each employee?

The most simplistic answer is that if there is the potential for injury to a third party, there is the potential that the agency may bear some of the liability. When Officer Friendly suddenly becomes Officer Angry, the supervisor should take note. Are other employees reporting concerns for his behavior? Are citizen complaints increasing? Is work performance dropping?

While a supervisor would be hard pressed to find a section for “cranky employee” in the yearly evaluation, a “behavioral expectations” policy can be used to begin a conversation. Asking an employee about his personal life is not acceptable. But it is acceptable to make the employee aware that his behavior has been noticed and is affecting his performance.

If the employee indicates that the behavior is caused by a personal issue, such as home, illness, finances or stress, the supervisor should refer the employee to an Employee Assistance program, stress management training or fitness for duty evaluation.

While under no circumstances should the supervisor attempt to solve or document the employee’s personal problem, he should document that the behavior has been discussed and possible solutions identified. Progressive discipline and documentation would show that the agency knew the behavior was a problem, took steps to correct the problem, and removed the person from the situation if necessary.
For many police departments, the sheer workload required to prevent negligence in hiring, training and retention is overwhelming. This is when the services of a professional trained in employee law and negligence lawsuits could be used to reduce some of the stress and liability concerns. Larger departments would benefit from a dedicated human resources person or legal advisor, while smaller departments could retain a lawyer skilled in employment law.

A quick Internet search for negligent retention turns up a multitude of law firms just waiting to take a negligent retention case. It would only make sense for an agency to ensure that policies, training and evaluation systems are in place, and that professionals trained in policy and employee decisions are available to add another layer of protection in the defense against negligent retention.

Kelly Sharp is a partner in Workplace Consulting NW, LLC, which provides a variety of training and management classes. In addition, she has worked as a 9-1-1 training officer and dispatcher for 15 years. Sharp can be reached at kellysharp@wpcnw.com.

Published in Law and Order, Dec 2009

Rating : 6.0


Comments

Comment on This Article

Negligent Retention

By Kelly Sharp

This article is right on line with our policies and procedures. All incidents and occurences with officers are documented for future use whether to train, discipline or just to use as a guideline. Our supervisors are told to learn the positive as well as the negative behaviors of their officers and address anything they consider unusual behavior. We take lawsuits towards officers seriously and require complete documentation to justify any violation. This was a fantastic article and what Kelly describes, I can truely say we are right on line with her suggestions. I enjoyed this article very much. Thank You.

Deputy Chief Gurule, Los Lunas PD, NM

Submitted Aug 14 at 2:39 PM

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