Texas high court considers whether TCPA shields employers from negligent-hiring claims

The Texas Supreme Court on Thursday heard oral argument in Walgreens v. McKenzie, a case testing whether the Texas Citizens Participation Act bars negligent hiring, training and supervision claims when the employer says the employee’s conduct was constitutionally protected speech.

The dispute centers on whether negligent-hiring-type claims are “derivative” of an underlying, actionable tort by an employee and therefore should be treated the same as respondeat superior and other derivative theories when a defendant invokes the TCPA. Petitioner’s counsel, Mr. David Griffiths, argued the plaintiff must prove both negligent hiring and an underlying actionable tort. “To prevail on a claim for negligent hiring, training, or supervision, the plaintiff must establish not only that the employer was negligent in hiring, but also that the employee committed an actionable tort against the plaintiff,” Griffiths told the court.

Why it matters: the answer will affect employers and employees across Texas and could narrow or broaden the circumstances under which defendants may seek early dismissal under the TCPA. The Court of Appeals in this case concluded the TCPA applied to two causes of action (negligence and intentional infliction) and held the plaintiff had not made the required prima facie showing; the court of appeals reached a different result as to negligent hiring, prompting the Supreme…