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AUGUST 2026
234

​QUICK HR ALERTS TO KEEP YOU UPDATED

What is Negligent Retention?
When Keeping an Employee Becomes a Liability

By:

Regina Dyerly, sHRBP, PHR |

Partner / Chief Operating Officer (COO) 

We've all seen it: the employee everyone knows is a problem, but no one wants to deal with.

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Maybe they're a top performer who consistently bends the rules because they "get results," a long-tenured employee who ignores safety procedures because "that's how they've always done it," or maybe they've generated multiple complaints over the years, but each incident has been viewed in isolation instead of as part of a larger pattern.

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The conversations become familiar:

"They're difficult, but they're our best salesperson."

"That's just their personality."

"We've coached them before."

"Let's give them one more chance."

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Sometimes those decisions are perfectly reasonable, but sometimes they're not. That's where a concept called negligent retention enters the conversation.

Defining Negligent Retention

Most employers have heard the term negligent hiring, the idea that an employer failed to exercise reasonable care before bringing someone into the organization.

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Negligent retention shifts the focus to what happens after someone is hired. It is the legal theory that an employer may be held liable if it knew, or reasonably should have known, that an employee posed a foreseeable risk to others and failed to take appropriate action.

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What Negligent Retention DOES NOT mean:

Negligent retention doesn't mean employers should terminate every employee who receives a complaint or makes a mistake. Employees deserve fair investigations, coaching when appropriate, and the opportunity to improve. The expectation isn't perfection, it's that employers respond thoughtfully and reasonably when concerns arise.

When Does Inaction Become ‘Negligent Retention’?

Negligent retention claims often arise when an employer is aware of serious or repeated concerns but allows the behavior to continue without taking meaningful action.

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Examples may include:

  • Multiple harassment or discrimination complaints that are ignored or inadequately investigated.

  • Threats of violence or escalating workplace misconduct.

  • Repeated safety violations in roles where employees, customers, or the public could be harmed.

  • Theft, fraud, or other dishonest conduct that goes unaddressed.

  • An employee working while impaired in a safety-sensitive position.

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The common thread is foreseeability. Once an employer becomes aware of information suggesting an employee may pose a risk, there is an expectation that reasonable steps will be taken to address the situation.

What Does "Reasonable Action" Look Like?

There isn't a one-size-fits-all answer, and that's important. Sometimes the appropriate response is additional coaching, training, or closer supervision. In other situations, a written warning, reassignment, a leave of absence, or termination may be the safest and most appropriate course of action.

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The goal isn't to eliminate every risk or rush to terminate employment. It's to make thoughtful, well-reasoned decisions based on the facts available at the time rather than hoping the issue resolves itself.

Practical Steps to Reduce Risk

Strong employment decisions are built on consistent processes, not perfect hindsight.

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Here are a few best practices::

  • Take employee concerns seriously, even when they seem informal.

  • Investigate complaints promptly, objectively, and consistently.

  • Document findings, decisions, and any corrective action taken.

  • Apply policies consistently, regardless of an employee's title or performance level.

  • Follow up after corrective action to ensure expectations are being met.

  • Consult HR or employment counsel when dealing with significant misconduct, harassment, safety concerns, or potential workplace violence.

The Bottom Line

One of the biggest shifts we're seeing in HR is moving from reacting to problems to helping leaders recognize risk earlier. Negligent retention isn't really about legal liability, it's about leadership and having the courage to address difficult issues before they become bigger ones.

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Sometimes the right answer is additional coaching, increased oversight, or it's recognizing that a high performer is creating costs that outweigh their contributions. And sometimes it's recognizing that an employee is no longer the right fit for the organization.

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The goal isn't to eliminate every risk; it's to make thoughtful, well-documented decisions that protect your people, culture, and business.  The best employment decisions aren't driven by fear of litigation, they're driven by good leadership.

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When organizations address concerns early, support managers through difficult conversations, and make thoughtful, well-documented decisions, they're not only reducing risk, they're building stronger teams and healthier workplace cultures.

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QUESTION:

My office is getting dangerously hot because our building is old, and upgrading the HVAC is expensive. We are now receiving complaints from employees. 

What are my obligations as an employer in regard to temperature in the office?
How hot can an office legally be?

Answer:
While OSHA does not have a fully implemented federal heat standard, the currently proposed standard says 80 degrees is when mandated safety measures, like cool water, regular breaks, or shade/air conditioning are going to be required. It’s important to check with the states you operate in as states like Colorado and California have their own OSHA approved heat standards that will need to be followed.
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Long Answer

According to OSHA heat is the leading cause of death among all weather related phenomena in the United States so as employers you have an obligation to keep your staff safe from high temperatures in the workplace. There are many ways to mitigate heat illness even in older buildings without AC or with antiquated units that are expensive to replace. Here are some steps you can take to stay in line with the proposed OSHA heat standard and keep your team cool this summer.

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1. Air Conditioner Maintenance:

If your office has an AC unit it’s important to follow manufacturer recommendations for cleaning and maintenance to keep your unit running efficiently. Most systems call for an annual cleaning and inspection. Cleaning the unit/ducts and replacing filters regularly will help your AC run as efficiently as possible which keeps the temperature and the bill low.

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2. Remote/Hybrid work:

Allowing employees to work from other locations when possible can reduce the cost of cooling an office. The peak hours for energy use and heat are between noon and 6pm which is  typically when offices are full of employees. If fully remote doesn’t work for your business needs you can always try allowing people to work from home during those peak heat hours. There are even companies that offer half day Fridays during the summer months as a benefit, keeping the AC off one extra day a week can save a lot of money over the course of a summer.

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3. Have a Heat Plan in place:

Maybe your office doesn’t have AC or you work outdoors, having a heat plan in place can keep you prepared. Train employees to recognize the signs of heat illness and what to do if they see them. Check the forecast in advance and have the supplies ready to go. The key to a strong heat plan is to know when to put it into action. The proposed OSHA rule suggests that when temperatures hit 80 degrees in the workplace employers have cold water available, shade or air conditioned areas for breaks, and allow people to take additional heat breaks as needed. At 90 degrees they recommend stronger measures like mandatory 15 minute breaks every 2 hours, buddy systems to watch for symptoms of heat illness, and that an emergency plan be available. Be sure to check your state’s guidance on heat illness to make sure your plan is compliant.

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4. Summer Dress Codes:

The clothing we wear is a major factor in how well our bodies can cool off. While it’s important to maintain professionalism, health and safety is the greater priority. Consider offering flexibility to your staff during warmer months to help people stay cool.

 

Summer heat can drive up utility costs and put employees or employers at risk if we don’t plan ahead and mitigate the impact. Even if we didn’t touch on a solution that fits with your business needs take this opportunity to think about ways you can beat the heat at your company!

 

Please review these OSHA guides on Heat Illness for more information:

https://www.osha.gov/heat-exposure/illness-first-aid

https://www.osha.gov/sites/default/files/osha_heattraining_guide_0411.pdf

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Perfect Payroll

Perfect Payroll is your payroll sidekick, bringing critical insights front and center to help identify and prevent errors early — without having to dig through reports.

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The Payroll Insights graph showing average totals from the last 10 regular payrolls run in the system and a grid displaying exceptions will populate at the bottom of the Process Payroll and Preview Payroll screens.

This feature is intended to enhance the Client experience when reviewing payroll information prior to submitting to your Vida HR Payroll Specialist for processing.

 

This Legal Service within isolved is available to all Vida HR clients in isolved at no additional cost – just reach out to your Service Team and request this be enabled for your company!

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EMPLOYEE HIGHLIGHT

EMPLOYEE HIGHLIGHT

EMPLOYEE HIGHLIGHT

Hello, I'm Rebecca Hicklin!

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I was raised in Nebraska, (on a cul-de-sac, not on a farm😊). Shortly after graduating from UNL, I packed my bags and moved to Colorado, a state  I visited as a child and where I always wanted to live.  I met my future husband, Stu,  a year later and settled permanently in Fort Collins.  My siblings and dad still live in my hometown, so I do get back there a few times a year to visit. I had a great childhood, but I always say Nebraska is a good place to be from.

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I began my HR profession working as a staffing agency manager and have spent my career in HR in various industries and roles including Manager, Director, Consultant and  HRBP. I completed my master’s degree and earned my PHR certification while working full-time and 8 months pregnant.

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In the Predictive Index, I'm characterized as an “Altruist. ”  This means I have a congenial personality and friendly. An interested attitude makes me readily approachable. I have been described, on many occasions, as not your “Normal HR” in that employees aren’t intimidated and feel comfortable in my presence, which I consider a compliment.

A little about me:

We are proud parents of two adult children, a son, Spencer,  who is a Lieutenant in the Air Force and a daughter, Riley,  who is a Police Officer.  Although my husband and I are empty nesters, we stay quite busy and active with our careers,  4 rescue dogs, maintaining  our acreage in Fort Collins and spending time at our cabin in Grand Lake. I spend my  free time with family and friends, hiking, skiing, snowmobiling,  riding ATV’s, boating, walking my dogs, doing yoga, attending church, volunteering, and living a happy life full of faith, gratitude and grace.

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