Gordon Graham says “Don’t hire stupid people.” Unfortunately, it happens. And here’s what I say; “If you do hire stupid people, don’t later select them to be K9 handlers.”
What should happen when a handler – or any person – is not performing to the established standards of a department? What should happen if they are incompetent? You’ve probably seen them, you’ve probably worked and/or trained alongside them, and you’ve probably wondered why they have not been removed from their program. It’s important to know how and when to legally drop the hammer on someone not performing so your department doesn’t get in trouble.
“…the purpose of bureaucracy is to compensate for incompetence and lack of discipline–a problem that largely goes away if you have the right people in the first place.” -Jim Collins
The theory of negligent retention holds an employer liable for retaining an employee who is known to be unfit for the position. Like negligent hiring, this theory places a duty on the employer to conduct a reasonable investigation of any information that suggests an employee’s unfitness and to respond reasonably to whatever is learned about the employee.
“It happens; incompetence is rewarded more often than not.” -Jeff Lindsay
Here’s some information on the topic from the National Criminal Justice Reference System (NCJRS): “Negligent retention” can be charged when an employer knew, or should have known, that an employee was unqualified to be in the job position he/she held when the action in question occurred. 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. This does not mean an employer must monitor every aspect of an employee’s behavior; rather, it means that administrators and supervisors must be aware that specific actions must be taken to guard against and lay the foundation for a defense against negligent retention lawsuits.”
“Negligent retention puts everyone at risk of vicarious liability.”
“Appropriate policies, training, progressive discipline and the involvement of dedicated human-resource personnel are critical to an agency’s ability to defend against negligent-retention lawsuits. Courts usually examine a number of factors when determining whether negligent retention of an employee has occurred. The court will typically examine what the employer knew or should have known about the employee’s job performance. Evidence of early intervention to correct poor performance or misconduct is important. Channels of communication between employees and supervisors must be clear, and employee performance evaluations must be regularly conducted in order to identify employees with performance problems. When it is clear that a pattern of incompetence and misconduct has not been corrected through training and constructive guidance, then the issue of negligent retention arises if the employer fails to remove the employee from his/her position.” (this paragraph also from NCJRS)
“…a person who repetitively exercises poor judgment under pressure in training is going to exercise poor judgment under pressure in a tactical situation and needs to be removed from the team. That can be a hard thing for leaders to do, but it has to happen.” -Steven “Randy” Watt
If you have a handler not performing to the established standards who represents a liability for your department – despite previous corrective measures, counseling and training remediation – you must begin taking the necessary steps to remove that person from your K9 program to avoid potential trouble down the road.
Take care, be safe and don’t be guilty of negligent retention….
Bill Lewis II
This “reason” was originally shared on September 30, 2013.
“Trouble” isn’t always related to incidents or predicaments that directly result in lawsuits, claims or discipline. Often times, our actions or inactions that are missed, deliberately overlooked or downplayed may lead to nothing or can later lead to mistakes or bad incidents with minimal to serious repercussions. A reason we get in trouble can be minor or simple at first glance – or even serious – but a combination of these factors can often have disastrous consequences.
These “reasons” are provided periodically as a collection in-progress based on actual incidents and real attitudes as well as feedback received at HITS, the CNCA Training Institute, and the “Canine Liability 360” classes. As Gordon Graham says, “We haven’t found new ways to get in trouble.” So, as the list progresses, you may or may not read something familiar to you that you have personally experienced or seen others encounter. If you encountered or heard about it, did you learn from it?