Diligence in hiring, retaining and supervising employees can keep your fitness center out of court.
A former University of Tampa cheerleader, Heather Wienclawski, sued the University of Tampa after being raped by her male cheerleading coach, Thomas Hall. Hall sexually assaulted the former cheerleader after taking her to a bar to celebrate her award of an internship in Orlando. Hall was arrested the next day, and later pleaded guilty to the charge of sexual battery. He was sentenced to two years of community service and six years of probation. Following the disposition of the criminal charges, Wienclawski sued the University of Tampa for 1) negligent hiring, 2) negligent retention and 3) negligent supervision.
You may think that you don't have to worry about a problem such as this, since you check the qualifications of your personnel carefully. This, however, is a situation where failing to understand the legal meaning of the terms "negligent hiring," "negligent retention" and "negligent supervision" lands you in a liability minefield.
Negligent hiringThe term "negligent hiring" means that an employee is hired or a volunteer is assigned who is unfit (i.e., has a propensity for physically violent or sexually abusive behavior). An employee can be well-qualified from a professional standpoint, but still be "unfit" for the job.
Wienclawski alleges that the University was negligent in that it failed to perform a thorough background check when Hall was hired. The cheerleader's complaint against Hall alleged that the coach's close contact and travel with squad members warranted a thorough background check. Investigation revealed that, 11 years earlier, Hall had been charged with two felonies: aggravated battery of a police officer and resisting an officer with violence. He pleaded no contest and was sentenced to 18 months probation. In addition, two years earlier, Hall had a battery charge for domestic violence.
Fitness centers are usually frequented by attractive young people - both as employees and members. Facility managers have a duty to hire people who are morally "fit" for employment in such an environment.
Negligent retentionLegal action can be brought against fitness centers for negligent retention of an employee or volunteer if the person is not dismissed after exhibiting unsuitable behavior or evidence of a propensity toward violence or sexual abuse. The cheerleader's complaint alleged that the University was negligent in retaining Hall after he was accused of making inappropriate comments toward the cheerleaders. The claim stated that the University failed to take any action to investigate, reassign or discharge Hall from the cheerleading squad when it became aware, or should have become aware, of a variety of indications of Hall's unfitness to serve as cheerleading coach. Fitness managers have a duty to dismiss any employee or volunteer who exhibits behaviors that would indicate he or she is "unfit."
Negligent supervisionNegligent supervision does not refer to how an activity is conducted, but, rather, to an assessment of the behaviors of the individual employee as related to "fitness": that is, a propensity toward violence or sexual molestation. Wienclawski's allegation of negligent supervision states that the University did not properly supervise Hall, and that school officials did not go to his practices or observe any of his interactions with cheerleaders. The complaint alleged that, had the University properly supervised Hall, it would have become aware of several indicators of his unfitness, including treatment of cheerleaders and inappropriate comments. Fitness centers have a legal duty to supervise all employees in their work environment on a regular basis.
Risk management guidelines
- When hiring, don't stop after you have checked credentials - perform background checks. Read recommendations carefully, and read between the lines. Don't be afraid to ask former employers direct questions about the "fitness" of the applicant. Keep a record of the steps that you take.
- Keep an accurate file on each employee. Don't ignore or minimize complaints or accusations. Make certain the complaining party knows that you are investigating the complaint. Keep a record of your follow-up and what you found.
- Establish a regular schedule for supervising employees. Keep your eyes and ears open for informal supervision as you walk through the facility. Keep a record of your formal supervision, and any relevant observations you make during informal supervision.