Oftentimes, when someone is harmed as a result of an employee of a company or firm behaving recklessly or goofing off, we expect that the employer would share in some of the responsibility. But the truth is if the employee was acting out of their own capacity rather than at the instruction of their employer, the employee could be the only one legally at fault for your injuries.
However, there are times when even though the employee was acting of their own volition and not at the instruction of the employer, the employer may still find themselves liable for their activities that result in harm. For the most part, these times are those when the employer should have seen the potential for harm and ignored it, typically in the hiring process.
Negligent Hiring or Retention: Unlike job-related conduct, negligent hiring or retention liability typically emerges from actions that employees take outside the strict scope of their job duties. Criminal acts fall in this category. Liability may be assigned to an employer when the employee had a criminal record at the time of hiring and the employer elected to assign them a position that put others in harm’s way as a result.
Say, for instance, a youth baseball league hires a coach who was once convicted of sexually assaulting a minor, and that coach goes on to sexually assault of the league’s participants. In the eyes of the law, the employer (the baseball league) acted carelessly in hiring the coach for the position and putting the children under his charge in harm’s way.
Likewise, for instance, let’s say a nursing home hires a man with a criminal history of assault and battery to serve as security for the facility. An altercation with one of the residents then finds that resident severely beaten by the guard. The employer could be held liable because it was negligent in hiring a man with a clear criminal history of violence and battery to interact with vulnerable residents.
In both of these cases, the employer did not properly fulfill their duty of care in the hiring process to protect those who would come to interact with the employees in question. Quite frequently in these cases, the employer simply neglected to do a proper background check. Failure to do so does not give the employer cover under the argument that they were not aware of the employee’s background. It was their responsibility to conduct a proper background check to ensure the individual they were hiring was not only qualified but safe to perform the duties they would be assigned.
Harassment: Employers hold a great deal of liability under workplace harassment legislation today. If harassment in the workplace involves discriminatory treatment based on: race, color, sex (irrespective of sexual conduct), national origin, religion, age, disability, genetic information, or the employee’s opposition to job discrimination or participation in an investigation or complaint proceeding under the Equal Employment Opportunity Commission.
Harassment, however, does not include simple teasing, off-hand statements or isolated incidents that are not deemed serious. The harassment must be frequent or severe enough to create a hostile work place for the victim. It can also result in “tangible employment action” like hiring, firing, promotion or demotion.
Liability still remains an issue even if there was no tangible employment action unless the employer can establish that they exercised reasonable care to prevent and swiftly correct any harassment; and
The victim unreasonably failed to complain to management or to otherwise avoid harm.
Employers must develop, publish and distribute (preferably in writing) a harassment policy and set out a process for filing complaints. They must also assiduously enforce that policy (documenting every effort to do so).
If you’ve been the victim of on-the-job harassment or been harmed by an employee of a company in the course of their work, you may be entitled to damages under personal injury law. Call the experienced attorneys of Bizzieri Law Offices at 773.881.9000 to learn more about your rights. We work hard to recover the highest damages to which our clients are entitled. The initial consultation is free, and we never get paid unless we recover damages for you.