Employer Liability for Actions of Employees and Others Chapter 5 Employer Liability for Actions of Employees and Others

TERMS Vicarious Liability Liability Negligent hiring (p. 86) (p. 96) Negligent supervision (p. 87) (p. 97) Negligent retention (p. 88) (p. 97) Negligent selection (p. 92) (p. 97) Liability of independent contractor Ratification/condonation principle Factors used to determine Independent contractor status Liability for acts of volunteer (p. 94) (97)

Management Contexts and Relevant Laws

Liability of Employers for Employees Vicarious liability: Respondeat superior (let the master respond). Employee actions must be within “scope of employment.” Consider Smith v. Gardner

Negligence in Employment-Related Decisions Negligent Hiring Negligent Supervision Negligent Retention Negligent Selection

Negligent Hiring The question is whether a manager acted reasonable in choosing a particular person to fill a position. Is there a risk created by exposing members of the public to a dangerous or unfit person. Read p. 86 and consider a possible problem.

Due Diligence Background Check Negligent Hiring

Negligent Supervision The question is whether a manager acted reasonably in guiding and overseeing an employee’s action.

NEGLIGENT SUPERVISION

Negligent Retention The question is whether a manager acted reasonably in retaining an employee’s services.

Negligent Selection The employer has a duty to choose an independent contractor in a reasonable fashion; similar to negligent hiring.

Negligent Selection of Independent Contractors Exception to general rule of nonliability for actions of independent contractors. Elements of negligence apply if employer fails to use due care when choosing an independent contractor.

Liability for Independent Contractors Employer avoids the prospect of vicarious liability based on the independent contractor’s actions. Degree of control is critical. Independent contractor status is determined by variety of factors.

Strategies Liability Related to Employees Develop and follow protocols for hiring employees, even when a candidate is known. Include protocols for reasonable investigation into applicants’ backgrounds. Check references thoroughly. Train managers to supervise and discipline employees appropriately. Develop a no-tolerance policy regarding workplace violence and inappropriate behavior, and train employees to resolve disputes. Strategies Liability Related to Employees

Legal Issues and volunteers

Liability for Acts of Volunteers Volunteer: Assists organization in some capacity for no compensation. Liability of a volunteer’s acts depends on level of control exerted over his/her actions, not on unpaid status. Consider: Lasseigne v. American Legion Nicholson Post #38

Liability for Actions of Collegiate Athletes Athletes are not agents of the university, nor are they employees. Courts typically hold that the relationship between university and its athletes is not one of employer-employee. Vicarious liability should not be imposed on a university for actions of its athletes. Consider: Kavanagh v. Trustees of Boston University

Strategies Liability of Contractors and Volunteers Independent contractors: Develop a list of necessary credentials for independent contractors, and hire only those who meet the criteria. Require a list of references, and check them carefully. Volunteers: Screen and select volunteers with the same care that you use for employees in the same capacities. Use particular care when screening volunteers who will be in positions of authority and trust with minors.

CASE STUDY

QUIZ 1. Scope of employment means that an employee is acting to advance the business of the employer. T/F 2. An organization can never be vicariously liable for the acts of a volunteer. T/F 3. Negligent hiring occurs when an employer breaches its duty to hire safe and competent employees. T/F 4 Most courts have consistently held that the relationship between a university and its athletes is one of a. Employer-employee b. Not employer-employee c. Principal-agent d. No relationship exists 5. An organization may be vicariously liable for the actions of a volunteer if: a. The volunteer is being partially compensated b. The volunteer is also an athlete c. The organization exerts day-to-day control over the volunteer d. The organization is never liable for the actions of a volunteer

Match: A. Negligent Hiring D.. Negligent Retention B. Negligent Supervision E. True C. Negligent Selection F. False ___6.When a manager does not act in reasonable care in choosing a particular person to fill a position. ___7. When an employer does not select a reasonably reliable independent contractor. ___8. When an employer does not remove a worker who has violated policies and/or the law. ___9. When a manager fails to guide and oversee an employee’s action. ___10. Contacting potential employee’s references is an option of the employer.

QUIZ ANSWER 1. A 2. B 3. A 4. B 5. C

6.A 7.C 8.D 9. B 10.F