Employers, and not the employees themselves, will often be held liable for the conduct of their employees. This is true even if the employer had no intention of causing harm and did not play any physical role in the harm. To understand why, you have to understand two basic concepts that underlie employer liability.
- First, Employers are seen as directing the behavior of their employees and consequently should share both the good and bad results of that behavior. In the same way that an employer is legally entitled to rewards from an employee’s work (benefit), an employer is also legally liable if that same behavior results in harm.
- Second, When someone is injured or injured and needs to be compensated, who is the most likely to pay: the employee or the employer? Fair or not, the legal system is interested in making the victim whole, and assigning responsibility to the employer rather than the employee has the best chance of achieving that goal.
Work related accidents
Employers are vicariously liable under the “superior accountability” doctrine for the negligent acts or omissions of their employees in the course of employment. The key phrase is “in the course of employment.” For an act to be considered within the course of employment, it must be authorized by the employer or be so closely related to an authorized act that the employer must be held liable.
This means that there is a significant difference between an employee who causes a work-related accident and an employee who causes an accident while at work that is not related to their employment. Courts sometimes use the terms “detour” or “frolic” to mean the difference.
Example of a «Detour-Detour» and «Retouch-Frolic»
A deviation is a deviation from the explicit instructions, but so closely related to the original instructions that the employer will remain liable. A frolic, on the other hand, is simply the employee acting in his or her own capacity rather than the instruction of an employer. Here are some examples to illustrate the difference:
- Example 1a: A company lends its sales staff vehicles so they can make sales calls in the area. Late at night, a salesman travels to a bar for totally personal fun and hits a pedestrian. The employer will likely not be held liable because, although the car is owned by the employer, the employee was using the car for personal, non-business reasons when the accident occurred.
- Example 1b: A company lends its sales staff vehicles so they can make sales calls in the area. As part of the business, the company encourages its sales staff to take potential customers out for dinner and drinks. One night, after taking a customer out for a drink, the employee is driving home and hits a pedestrian. The employer is likely liable as it encourages salespeople to draw customers out for food and drinks, and that is precisely what the employee was doing when the accident occurred. The employer’s liability would be more ambiguous in this example if the employee were intoxicated (something the employer might have expected to happen, but probably would have warned the employee against).
- Example 2a: A company gives its employees cell phones so they can call meetings and keep in touch while they travel. While away from the office, an employee calls for a conference call, is distracted, and hits another car causing serious injury. The employer is likely responsible for the car accident.
- Example 2b: A company gives its employees cell phones so they can call meetings and keep in touch while they travel. An employee decides to call his mother to tell her that he will be in town next week. During the call he is distracted and collides with another car causing serious injuries. The employer is likely not liable for the car accident, unless a jury decides that the employer should have known that employees would use the phone for personal calls and took no action to prevent misuse of the phone.
Finally, a special type of work-related accident occurs when an employee injures another employee while on the job. Workers’ compensation protects you from being sued by your employee as long as the employee was acting within the scope of his job when the accident occurred. Instead of filing a lawsuit, the employee would file a claim to receive payment for lost wages, medical bills, etc.
Negligent hiring or retention
Negligent hiring or retention liability, unlike work-related misconduct, arises from acts performed by an employee outside the scope of their employment. The most common example of this is holding an employer liable for an employee’s criminal conduct, which is obviously outside the scope of employment. The basis of liability is that the employer acted carelessly in hiring a criminal for a job that the employer should have expected would expose others to harm. Here are some examples:
- Example 1: An ice cream vendor hires a man convicted of sexually assaulting a minor to drive his ice cream truck and sell ice cream to children. The business is likely liable because it was negligent in hiring a man known to have assaulted minors, and then giving those minors access as customers.
- Example 2: A care center for the elderly hires a woman convicted of fraud and identity theft against the elderly to take care of the patients of that center. The business is likely liable because it was negligent in hiring a woman who had already been convicted of defrauding the elderly and giving her access to potential victims.
- Example 3: A cable company hires a man without a background check and directs him to go to the customer’s houses and install the cable equipment. Turns out he’s been twice convicted of rape, and while at a customer’s home to install equipment, he rapes the occupant. The business is likely liable because it was negligent in hiring someone who has access to private homes without a background check, as well as being responsible for hiring someone with a history of rape to meet privately with clients at their home.
The key to most negligent hiring and retention cases is providing employees access to potential victims without doing the necessary employee screening. ‘ Therefore, to avoid liability for negligent hiring, an employer should always conduct a background check on an employee, and be especially careful if the employee has contact with the public. If you as an employer become aware of something after the fact, then handle the matter immediately to avoid negligent withholding liability.
Workplace harassment of employees by other employees has become an increasingly problematic source of corporate liability for employers. Harassment in the workplace violates federal law if it involves discriminatory treatment based on: race, color, sex (with or without sexual conduct), religion, national origin, age, disability, genetic information, or the employee’s opposition to discrimination at work or participation in an investigation or complaint procedure under the Equal Employment Opportunity Commission.
Harassment in the workplace does not include simple taunts, random comments, or isolated incidents that are not extremely serious. The conduct must be frequent or severe enough to create a hostile work environment or result in “tangible employment action,” such as hiring, firing, promoting, or demoting.
Even if the harassment did not lead to a “tangible employment action,” the employer can be held liable unless it proves otherwise:
- The employer exercised reasonable care to prevent and promptly correct any harassment; Y
- The employee who was unreasonably harassed failed to complain to management or otherwise avoid harm.
To avoid liability for harassment in the workplace, employers must establish, distribute, and enforce a policy prohibiting harassment, and establish a procedure for filing complaints. Preferably, the policy and procedure should be in writing. Small business owners can avoid liability through less formal means.
For example, if a business is small enough that the owner maintains regular contact with all employees, the owner may tell employees at staff meetings that harassment is prohibited, that employees should report such conduct promptly. , and that a complaint can be made directly to any supervisor or to the business owner.
Conduct an impartial investigation
Finally, simply creating a harassment policy is not enough. A company must also conduct prompt, thorough and impartial investigations into any complaints that arise, and take prompt and appropriate corrective action to fulfill its responsibility to “effectively prevent and correct harassment.”
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