1. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved CHAPTER 4 Common Law, Negligent Hiring, and Employee Rights

2. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved INTRODUCTION Scrutinize employee applications, and do not hire on the spot. Make them come in for a second interview, which creates an aura of privilege to work there – as it should be. Check references. Ask for written references if possible. Scrutinize employee applications, and do not hire on the spot. Make them come in for a second interview, which creates an aura of privilege to work there – as it should be. Check references. Ask for written references if possible. - Maren L. Hickton, Maren Incorporated, Pittsburgh, PA - Maren L. Hickton, Maren Incorporated, Pittsburgh, PA

3. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved TALES FROM THE FIELD Delivery driver protects his turf…  Should the driver have been terminated?  Had someone been shot, what is the restaurant’s liability?  How should the restaurant protect its employees from violent events?  What kind of background checks should be conducted on delivery drivers?

4. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved CHAPTER OVERVIEW  Importance of pre-screening job applicants  Negligence, liability, and reasonable care  Common law and the employee relationship  At-will employment  Employee rights in the workplace  Grounds for employee-initiated lawsuits

5. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved PRE-SCREENING APPLICANTS  Background checks and drug screens are common in large chain operations  Due to high costs, smaller operations do not often pre- screen job applicants

6. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved MULTI-MILLION DOLLAR LAWSUITS  Hotels and restaurants have lost major lawsuits as a result of the criminal and negligent acts of their employees  Costs of background checks is minimal compared to a major lawsuit

7. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved NEGLIGENCE Negligence is doing (or not doing) what a sane, reasonable person would (or would not) do under like or similar circumstances Negligence is doing (or not doing) what a sane, reasonable person would (or would not) do under like or similar circumstances  Hospitality operations can be held liable for the negligent acts of its employees

8. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved REASONABLE CARE Restaurants and hotels must provide reasonable care to protect their guests from harm or injury Restaurants and hotels must provide reasonable care to protect their guests from harm or injury  Each case is different, and what is reasonable is often left up to the courts to decide

9. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved FORESEEABLE Establishments need only protect against occurrences which are foreseeable Establishments need only protect against occurrences which are foreseeable A recently mopped restaurant floor could “foreseeably” cause a guest to slip and fall, so the restaurant provides reasonable care by placing the “wet floor” sign in the area as a warning to guests to be cautious

10. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved COMMON LAW AND NEGLIGENCE  Hotels and restaurants have a common law duty to protect their guests from harm or injury  Hotels and restaurants must also exercise reasonable care in the practice of supervising the activities of their employees

11. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved AT-WILL EMPLOYMENT  In at-will employment states, employees can be terminated at any time and for any reason  Exceptions may include where a union contract is in force

12. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved ILLEGAL DISCRIMINATION NOT ALLOWED Numerous state and federal laws cover employee/employer relationships, so even in an at-will employment state, management should have a justifiable, valid, and non- discriminatory business reason for any employee discharge

13. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved EMPLOYEE RIGHTS Many potential legal pitfalls can occur as a result of management’s failure to exercise reasonable care in employee relations… WRONGFUL DISCHARGE CONSTRUCTIVE DISCHARGE ASSAULT AND BATTERY INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FALSE IMPRISONMENT DEFAMATION BY LIBEL DEFAMATION BY SLANDER INVASION OF PRIVACY NEGLIGENT HIRING NEGLIGENT RETENTION

14. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved IDENTIFY THE CIRCUMSTANCES THAT MAY PROVIDE AN EMPLOYEE WITH THE GROUNDS FOR FILING A LAWSUIT BASED ON EACH OF THE FOLLOWING  Wrongful discharge  Constructive discharge  Assault and battery  Infliction of emotional distress  False imprisonment  Libel and slander  Invasion of privacy  Negligent hiring  Negligent retention

15. Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved SUMMARY  Importance of pre-screening job applicants  Negligence, liability, and reasonable care  Common law and the employee relationship  At-will employment  Employee rights in the workplace  Grounds for employee-initiated lawsuits