Holding Employers Liable for Employee Wrongs





Recently, the Nevada Supreme Court upheld a multimillion dollar damages award against an employer after two of its employees were involved in a 2001 drunk driving accident that resulted in one woman's death.

ETT, Inc., a Las Vegas slot machine company, was ordered to pay $8.2 million in compensatory and punitive damages for the wrongful death of Roja Delgado. Delgado was killed when an ETT, Inc. van driven by two temporary employees hit her car. The employee driving the vehicle had a blood alcohol content three times the legal limit. The Nevada trial court assigned 75 percent of the fault for Delgado's death to ETT, Inc. and the remaining 25 percent to the employee who was driving the van.

While many may be surprised that a Nevada court would assign most of the fault in this case to the employer rather than the employee, who was directly responsible for causing the death, this outcome is not all that unusual. In fact, courts across the country have been imposing liability on employers for the bad acts of their employees for some time now.

When are Employers Responsible for the Acts of Employees?
Respondeat superior

The general rule is that an employer may be held legally liable for the bad acts of its employees whenever the bad act is committed in the course and scope of employment, otherwise known as "respondeat superior."

Under the theory of respondeat superior, an employer may be found responsible not only for an employee's negligent acts, but also for an employee's intentional and criminal acts. The employer may be responsible in cases when the employee injures another co-worker, customer or an innocent bystander. Employees may include full-time and part-time employees and, in some cases, temporary workers and independent contractors, even when they are hired by third-parties.

The key question in respondeat superior cases is whether the employee was acting in the scope or course of employment at the time the injury occurred. Employers cannot be held liable under respondeat superior if the employee was acting out of personal motives.

For example, if an employee was driving a company car to make a flower delivery and hit a pedestrian in the cross-walk while driving to the delivery destination, then the employer may be liable for the pedestrian's injuries on a theory of respondeat superior.

However, if the same employee was driving the company car on the weekend after work hours and hit a pedestrian while on the way to a friend's house for dinner, then the employer is not liable for the injuries because the employee was not acting in the scope of employment at the time of the accident.

Vicarious liability

In some cases, employers can also be held legally responsible for the acts of employees that are outside of the course and scope of employment. Legally, this is referred to as "vicarious liability." In order for an employer to be held vicariously liable for an employee's bad acts, the employer must have known or had reason to know that the employee posed an unreasonable risk of harm to others.

The most common types of vicarious liability claims are negligent hiring and retention claims.

In a negligent hiring claim, the injured person has the burden to prove that the employer failed to exercise reasonable care in determining whether the employee was fit for employment prior to hiring him or her. In general, employers have a duty to verify a job applicant's background, including prior employment positions, educational degrees, professional licenses and references. Additionally, employers also should perform a criminal background check as well as check the applicant's driving record, especially in cases when the employment position requires frequent contact with customers and/or driving.

For example, if an employer failed to run a criminal background check on an employee and that employee assaults a customer while on a sales-call, the employer may be liable if the criminal background check would have put him or her on notice that the employee was unfit for employment.

In a negligent retention claim, the injured person has the burden to prove that the employer failed to take action against an employee whom the employer knew or should have known posed a threat to others. For example, if an employer received one or more complaints about an employee making sexually inappropriate comments to female co-workers but then took no action to stop the behavior, then the employer may be held liable for sexual harassment. At a bare minimum, the employer has a duty to conduct a reasonable investigation of the complaints to determine if any disciplinary action needs to be taken.

Employers may also be held vicariously liable for negligently training and/or supervising employees.

ABOUT THE AUTHOR: Peter Christiansen
Professional Associations and Memberships
National Association of Criminal Defense Lawyers, 1997 - Present
Nevada Attorneys for Criminal Justice, 1997 - Present
Clark County Bar Association, 1995 - Present
Nevada Trial Lawyers Association, 1994 - Present
American Bar Association, 1994 - Present

Copyright Eglet Wall Christiansen
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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