Navigating Complex Issues of Employment Negligence (Part VI)

By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson material written for APUS classes. This is the sixth article in a seven-part series on the particulars of employment negligence law and smart employer strategies for avoiding unnecessary workplace liability.

In the third, fourth and fifth parts of this series, we examined the use of various tests in hiring. Now, we will assess some of the ways in which employers may be liable for the actions of their employees regardless of how well they handle the hiring selection and screening processes.

Negligence through Vicarious Liability

Even if an employee has no record of questionable prior conduct and even if the employer does due diligence in screening employees, the employer may still be liable for the actions of an employee if negligence arises from actions within the scope of employment. This is what is known in the legal context as “vicarious liability” (meaning liability through another).

If an employee commits an act of negligence while acting within the scope of his or her employment, the employer will generally be liable for any damages. The problem, as one can imagine, comes in determining whether the employee’s action is “within the scope of employment” in a legal sense. Relevant factors that have been established in what is called the Birkner test include whether:

1. at the time of the alleged negligence, the employee was engaged in conduct generally consistent with the duties that the employee was hired to perform (as opposed to an exclusively personal endeavor);
2. the alleged negligence occurred within the working hours of the employee or employer and/or within the general spatial boundaries of the employer’s business; or
3. at the time of the alleged negligence, the employee’s behavior was motivated by his or her duty to serve the employer’s interests.

This may seem straightforward at first glance, but as with most legal rules, the details can make such cases quite complicated. For example, in the landmark 1994 case of Christensen v. Swenson, an employee caused a motor vehicle accident while off company property on her permitted break time. Now, the intuitive conclusion might be that such circumstances should preclude any liability on the part of the employer.

However, this case went all the way to the Utah Supreme Court. The judges ruled that just because the employee was on a break near her work premises and was acting in accordance with her employer’s break policy, this was not, by itself, enough to indemnify the employer without further trial proceedings.

In Employment, Vicarious Liability Can Never Be Completely Avoided

The unfortunate reality for employers is that vicarious liability can never be completely avoided. It is likely that, unless the employee in question is off the clock, far from the work premises, and not doing anything even remotely related to his or her employment, liability for the employee’s actions may result. Accepting this situation, employers should focus their efforts on a few key proactive measures.

First, careful recruiting of the most trustworthy employees might avoid unnecessary problems before they occur. Second, strong policy development and enforcement will help hold employees accountable. Finally, meticulous training — and incentivization of desired conduct such as attention to safety concerns and ethical behavior — will help to promote a workforce that minimizes liability for the employer.

Employment and Workplace Violence

One sad but frequent concern in modern business today is workplace violence, which the Occupational Safety and Health Administration (OSHA) defines as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.”

According to OSHA, nearly two million Americans report being victimized by workplace violence each year. In the Bureau of Labor Statistics’ Census of Fatal Occupational Injuries for 2018, almost 9% of the 5,250 reported workplace fatalities were homicides.

Workplace violence can include single instances of hostile behavior, or repetitive, habitual “bullying.” Depending on the circumstances, certain instances of sexual harassment may also be appropriately construed as workplace violence.

Workplace Violence Can Be Mitigated through Employers’ Proactive Efforts

The risk of workplace violence can be mitigated through employers’ proactive efforts. Thorough training for all employees on codes of conduct and standards of acceptable behavior sets proper expectations. Strict policies with explicit consequences (e.g., “zero tolerance” policies) for violations ensure that any risks are addressed in the safest possible way for all involved.

In the next article, we’ll look at the dynamics surrounding sexual harassment between employees and the risk of liability that this pervasive issue creates for employers.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.