Negligent Hiring and Retention Claims Against Chicago Daycares

Every parent in Chicago trusts a daycare to protect their child. That trust is built on the assumption that the people caring for your child were properly vetted, qualified, and safe to be around children. When a daycare operator skips that step — or keeps a dangerous worker on staff despite clear warning signs — the results can be devastating. Negligent hiring and retention claims hold Chicago daycare operators directly accountable for the choices they make about who they put in charge of your child.

Table of Contents

• What Negligent Hiring and Retention Mean Under Illinois Law
• Illinois Background Check Requirements Daycares Must Follow
• How Illinois Courts Handle Negligent Hiring Claims Against Daycares
• Warning Signs That a Daycare Failed to Properly Vet Its Staff
• What Damages Are Available in a Negligent Hiring or Retention Claim
• FAQs About Negligent Hiring and Retention Claims Against Chicago Daycares

What Negligent Hiring and Retention Mean Under Illinois Law

Negligent hiring and negligent retention are two distinct but related legal theories recognized by Illinois courts. Both allow an injured child’s family to sue a daycare operator directly for the operator’s own failures, separate from any wrongdoing by the individual worker.

Illinois courts have recognized a cause of action against an employer for negligently hiring, or retaining in its employment, an employee the employer knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. This standard was established in Van Horne v. Muller, 185 Ill. 2d 299 (1998), and it applies directly to daycare operators across Chicago, from Lincoln Park to Pilsen to Bronzeville.

An action for negligent hiring or retention requires the plaintiff to plead and prove that: (1) the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) this particular unfitness proximately caused the plaintiff’s injury.

A claim of negligent retention may exist where an employer fails to discharge an employee known, or who reasonably should have been known, to present a foreseeable risk to others, who then goes on to do harm. So if a daycare in Logan Square hired someone with a clean record but later received complaints about that worker’s behavior and did nothing, the retention theory applies. The daycare’s failure to act becomes the source of liability.

These are direct claims against the daycare operator itself, not just against the individual worker. Under a theory of negligent hiring or retention, the proximate cause of the plaintiff’s injury is the employer’s negligence in hiring or retaining the employee, rather than the employee’s wrongful act. That distinction matters enormously in a lawsuit.

Illinois Background Check Requirements Daycares Must Follow

Illinois law does not leave background checks up to a daycare’s discretion. The Chicago personal injury lawyer team at Briskman Briskman & Greenberg regularly sees cases where operators ignored or bypassed these mandatory requirements, putting children at serious risk.

The purpose of Illinois DCFS background check rules is to ensure the safety and well-being of children cared for in any facility subject to licensing by the Department of Children and Family Services by requiring that the operators of child care facilities and other persons subject to background checks, as defined in the Child Care Act of 1969 [225 ILCS 10/4.2], be screened for a history of child abuse or child neglect, prior criminal convictions, or pending criminal charges.

Under Illinois Administrative Code, the definition of “employee” for background check purposes means any staff person employed by a child care facility, including any volunteer, unlicensed contractual employee, substitute, or assistant and other support staff who have access to children. This is a broad definition. It covers full-time teachers, part-time aides, substitute caregivers, and volunteers who spend time with children at the facility.

A corrective plan developed under federal audit requirements includes a requirement that all new and existing day care staff who are employed by a day care provider for compensation, or whose activities involve unsupervised access to children, must have comprehensive background checks, including janitors, cooks, and other employees who may not regularly engage with children but whose positions at the facility give them the opportunity for unsupervised access.

Background checks require a criminal history check via fingerprints of persons age 18 and over that are submitted to the Illinois State Police (ISP) and the Federal Bureau of Investigation (FBI) for comparison to their criminal history records. Skipping this step is not an administrative oversight. It is a failure that can directly expose children to harm, and it forms the foundation of a negligent hiring claim.

How Illinois Courts Handle Negligent Hiring Claims Against Daycares

The legal framework for these claims in Illinois has grown stronger for families over recent years. A landmark ruling from the Illinois Supreme Court in McQueen v. Green, 2022 IL 126666, reshaped how these cases work in practice.

In an opinion handed down on April 21, 2022, the Illinois Supreme Court reversed prior Illinois law and now allows direct and vicarious liability actions against employers. The decision in McQueen v. Green allows direct and vicarious liability actions for negligent entrustment, supervision, retention, training, and hiring against employers even if agency is admitted.

What does that mean for your family? It means a daycare in Hyde Park or Wicker Park can no longer simply admit that a worker was their employee and stop the inquiry there. A verdict form can now include a line item finding a company vicariously liable for its employee’s negligence and a separate line item for its own negligent training, hiring, retention, entrustment, or supervision. The daycare faces accountability on both tracks.

Punitive damages are also on the table in serious cases. On July 17, 2017, the Illinois Appellate Court, First District, held that punitive damages are recoverable under Illinois law in the claim for negligent hiring, supervision, or retention of a dangerous employee, even if the employer lacked actual knowledge of the employee’s dangerous propensity. Under the Illinois Wrongful Death Act (740 ILCS 180), punitive damages may also be available when a child’s death results from a daycare’s willful or wanton conduct in retaining a dangerous worker.

Illinois also follows modified comparative fault under 735 ILCS 5/2-1116. A daycare may try to argue that some fault rests elsewhere, but as long as the daycare’s negligence is 51% or more of the cause, your family can still recover full damages proportionate to the daycare’s share of fault.

Warning Signs That a Daycare Failed to Properly Vet Its Staff

Parents often ask: how would I even know if a daycare skipped background checks or kept a dangerous worker on staff? The signs are not always obvious at first, but they become clearer once you know what to look for.

One of the most direct indicators is a worker with a prior history of abuse, violence, or inappropriate conduct with children who was hired anyway. Negligent hiring generally involves hiring an employee who foreseeably would harm someone, who in fact does go on to harm someone, such as hiring an individual to work at a day care who is known, or through a reasonable background check should have been known, was a convicted pedophile who poses a risk to children, if the employee later molests a child.

For negligent retention claims, the warning signs often involve complaints that were ignored. Did other parents raise concerns about a specific worker? Did staff members report troubling behavior to management? Were there prior incidents at the facility involving the same employee? If the daycare operator received any of these signals and kept the worker on staff without investigation, that is a retention failure. Physical signs of abuse in young children, sudden behavioral changes, or unexplained injuries are often the first indicators that something went wrong at the facility level.

You should also look at the daycare’s DCFS inspection records. Illinois requires licensed daycares to maintain documentation of background checks under 89 Ill. Adm. Code 385. If a facility has citations for failure to conduct required background checks, or if DCFS records show prior licensing violations, those records become powerful evidence in a lawsuit. The Daley Center in downtown Chicago is where many Cook County civil cases involving daycare negligence are filed, and these records are frequently introduced as exhibits at trial.

What Damages Are Available in a Negligent Hiring or Retention Claim

Families who bring negligent hiring or retention claims against Chicago daycares can seek several categories of compensation. The nature and severity of your child’s injuries determine the full scope of what may be recoverable.

Economic damages cover the direct financial costs of the harm. These include past and future medical expenses, costs for therapy and counseling, and in severe cases, compensation for a child’s loss of future earning capacity. Children who suffer physical abuse, sexual abuse, or emotional trauma at a daycare often require years of mental health treatment, and those costs are recoverable.

Non-economic damages include pain and suffering, emotional distress, and the trauma your child experienced as a direct result of the daycare’s failure to screen or remove a dangerous employee. Illinois law does not cap non-economic damages in most personal injury cases involving children.

In the most serious cases, punitive damages may be available. A trial court may allow a claim for punitive damages if the evidence would reasonably support a finding that the defendant acted willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. A daycare that hired a worker with a known history of child abuse, or that received multiple complaints about a worker and did nothing, may face punitive exposure.

If your child died as a result of a daycare worker’s actions and the operator’s negligent hiring or retention contributed to that outcome, the Illinois Wrongful Death Act (740 ILCS 180/1) provides a separate path for the family to recover damages. Illinois law also allows for structured settlements to protect a minor’s recovery, and any settlement on behalf of a child requires court approval to ensure the child’s interests are protected. The attorneys at Briskman Briskman & Greenberg handle every aspect of this process for families across the Chicago area. You can reach our office at (312) 222-0010 to speak with someone about your family’s situation.

FAQs About Negligent Hiring and Retention Claims Against Chicago Daycares

What is the difference between negligent hiring and negligent retention?

Negligent hiring focuses on what the daycare knew, or should have known, before bringing a worker on staff. If a proper background check would have revealed a disqualifying history, the daycare is liable for hiring that person. Negligent retention focuses on what happened after the hire. If the daycare received complaints, observed warning signs, or had reason to know a worker posed a risk and kept that person employed anyway, the retention theory applies. Both claims hold the daycare operator directly responsible for its own decisions, not just for the worker’s actions.

Does Illinois law require all daycare workers to pass a background check?

Yes. Under the Illinois Child Care Act of 1969 (225 ILCS 10/4.2) and DCFS Rules 385, all employees of licensed child care facilities must be screened for criminal history, child abuse and neglect history, and pending criminal charges. This requirement extends to volunteers, substitutes, and support staff who have access to children. Fingerprints are submitted to both the Illinois State Police and the FBI. A daycare that skips this process violates state law and faces direct liability if that failure leads to a child being harmed.

Can I sue a Chicago daycare even if the worker was never criminally charged?

Yes. A criminal conviction is not required to bring a civil negligent hiring or retention claim. The civil and criminal systems operate independently. In a civil case, you only need to show that the daycare knew or should have known the worker was unfit and that the worker’s unfitness caused your child’s injury. The standard of proof in a civil lawsuit is a preponderance of the evidence, meaning it is more likely than not that the daycare’s negligence caused the harm. Many successful civil cases proceed without any criminal charges against the worker involved.

What evidence is needed to prove a negligent hiring or retention claim?

Key evidence includes the daycare’s hiring records, background check documentation (or the absence of it), DCFS inspection and licensing records, any prior complaints made against the worker, internal communications about the worker’s conduct, witness statements from other staff or parents, and your child’s medical and psychological records. Surveillance footage from the facility, if preserved promptly, can also be critical. An attorney can help you send a preservation demand to the daycare immediately after an incident to prevent records from being destroyed or lost.

How long do I have to file a negligent hiring claim against a Chicago daycare?

In Illinois, the general statute of limitations for personal injury claims is two years from the date of injury under 735 ILCS 5/13-202. However, claims involving minors are subject to a tolling provision. Under Illinois law, the statute of limitations for a minor’s personal injury claim does not begin to run until the child turns 18, giving the injured child until their 20th birthday to file. That said, evidence disappears over time. Witnesses move, surveillance footage gets deleted, and records are lost. Contacting Briskman Briskman & Greenberg as soon as possible at (312) 222-0010 gives your family the best chance of building a strong case.

More Resources About Who Can Be Held Legally Responsible for Daycare Injuries

• Suing a Daycare Center After a Child Is Injured in Illinois
• Chicago Daycare Owner Liability for Child Injuries
• Daycare Worker and Individual Staff Liability in Illinois
• Parent Company and Franchise Corporation Liability
• Property Owner and Landlord Liability for Daycare Injuries
• Third-Party Liability in Chicago Daycare Injury Cases
• Product Manufacturer Liability for Defective Daycare Equipment
• Negligent Supervision Claims Against Chicago Daycares
• Vicarious Liability in Illinois Daycare Cases
• Suing an Unlicensed Daycare in Chicago
• When Multiple Parties Share Liability for a Daycare Injury