Robert M. Vercruysse, Editor; Ann M. Nicklas, William E. Altman, Associate Editors
Vercruysse Murray & Calzone, P.C.

Vol. 19, No. 2
April 2008

ASKED AND ANSWERED

When can companies face negligent hiring claims?

Susan Hartmus Hiser

Q We had a rather volatile sales manager who received several written warnings for aggressive, intimidating behavior toward our controller. We also required him to take anger-management classes. The manager ended up quitting more than a month ago, but the controller just found out that the company owner has rehired him because we need his sales skills. The controller is understandably uncomfortable with having the manager back in the company. Do we face liability issues if we bring the manager back?

A Whether your company faces liability will depend on where things stood when the sales manager quit and whether he has improved his behavior since then. If the warnings and the anger-management classes were effective and his behavior had improved at the time of his resignation, then I don't think there's any basis for imposing liability at this point in time.

I would caution you to continue to monitor the situation, however. If the manager reverts back to his old ways, you must be proactive in dealing with the situation and not let things deteriorate. If things had already deteriorated to the point where he would have been terminated had he not resigned, then you face a greater risk of liability. You need to take proactive steps to ensure that he doesn't pose a threat or safety risk to your current employees.

One of the elements of a negligent hiring theory is that the employer breached a duty to use reasonable care in hiring only competent and safe employees because it knew or should have known about an employee's propensity for dangerous activity. In short, you've been put on notice that your sales manager's past behavior has been aggressive and intimidating. If you bring him back into your employment, you must take sufficient measures to ensure that his behavior doesn't pick up where it left off.

Q We have an employee who has requested a copy of his entire personnel file. I believe we have an obligation to give it to him, but one of the managers is arguing the point with me. I'm not sure why he wants the file. What should I do?

A Michigan's Bullard-Plawecki Employee Right to Know Act covers your obligations in letting employees view and copy their personnel records. A "personnel record" includes any record kept by an employer that identifies the employee and is used or has been used, or may affect or be used, to determine his qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. Some of the things typically maintained in personnel files that should not be part of those files are medical records, materials relating to the company's staff planning that affect other employees (such as salary increases and bonus plans), and records of grievance investigations that aren't used for the purposes described above.

You must allow employees to view their personnel records if they make a request to see them in writing at reasonable intervals (generally not more than two times in a calendar year or as otherwise provided by law or a collective bargaining agreement). The review shall take place at a location reasonably near the employee's place of employment during normal office hours.

After reviewing his personnel record, an employee may obtain a copy of the information or part of the information contained in the record. You may charge a fee for providing a copy of the personnel file, but it can't exceed the actual incremental cost of duplicating the information. Finally, if an employee demonstrates that he is unable to review his personnel record at his place of employment, then you must mail a copy of the record to him upon written request and after receiving payment for the copying costs.

Susan is an attorney with Vercruysse, Murray & Calzone, P.C., in Detroit. You can reach her at shiser@vmclaw.com or (248) 540-4987.

Copyright 2008 M. Lee Smith Publishers LLC

MICHIGAN EMPLOYMENT LAW LETTER is intended to provide information but not provide legal advice regarding any particular situation. The information in this Law Letter is to make you aware of the implications of several contemporary problems. This Law Letter is not intended to be, and should not be regarded as, a legal opinion or legal advice. It is simply not possible or prudent to offer legal advice or a legal opinion without a prior thorough investigation and analysis of the facts attendant to any specific situation.