Liability Law: Negligence Per Se And Employer Responsibility

Employers can be held liable for the negligent acts of their employees under the doctrine of vicarious liability. This means that if an employee causes harm to a third party through their negligence, the employer may be held responsible. However, for vicarious liability to apply, the negligent act must fall within the course and scope of employment. This means that the act must be either required by the employer or reasonably incidental to the employment. If the act substantially deviates from regular employment duties, employers won't be held liable. In addition, employers can also be held directly liable for their own negligence in hiring, training, supervising, or retaining employees. This is known as negligent hiring or negligent retention.

Vicarious liability

To avoid vicarious liability, employers must exercise reasonable care to prevent employees' negligent behaviour. This includes providing proper training and instructions to employees, creating employee manuals with clear rules and expected conduct, and responding to complaints from employees and other parties. Employers should also ensure they are not treating independent contractors as employees, as they are generally not covered by vicarious liability.

Negligent hiring

In most cases, employers are liable for negligence under "vicarious liability" laws. Corporate law states that owners and managers are responsible for the mistakes made by the wrongful acts or omissions of another individual, including those they hire. Employers must ensure they provide their workers with proper training and instructions to reduce the risk for the employer and keep the worker in good standing with the company.

Negligent retention

For example, in a landmark case, Charter Communications (also known as Spectrum) was found liable for the homicide of a customer by one of its technicians. The lawsuit revealed that Spectrum failed to conduct adequate background checks, and the technician had a history of physical disputes and violent behaviour. As a result, the company was ordered to pay over $7 billion in damages.

To prevent negligent retention, HR departments should conduct thorough background checks on all potential employees and address any issues or complaints promptly. Clear HR policies and performance management systems should be implemented to monitor and evaluate employee behaviour and performance.

In summary, negligent retention occurs when an employer fails to take appropriate disciplinary action, such as termination, against an employee they knew or should have known was unsuitable, and the employee's actions cause harm to others.

Workplace negligence

Employer Negligence

Employers have a mandate to keep their employees safe. This includes ensuring that the people they hire are qualified to do the work they were hired to do and are safe to be around in the workplace. For example, an employer would be considered negligent if they failed to do a background check on a new hire and later found out that the employee was fired from a previous job for assaulting a co-worker. If the worker has been reported to the employer for stalking or displays worrisome, violent, or careless behaviour in the workplace, it is the responsibility of the employer to take action to protect other employees. If the worker commits an act that harms themselves or another employee, such as assault or repeated sexual harassment, the employer can be found liable. An employer might also be negligent in failing to properly train employees in safety procedures or the use of safety equipment. For instance, if an employee is not trained on how to use certain equipment and injures themselves or others, the employer could be held negligent for the work injuries. This can also refer to equipment safety guards or proper protective equipment such as gloves, masks, and eye protection to provide worker safety in hazardous environments or when working with dangerous equipment and substances.

Employee Negligence

Employees can sometimes do negligent things. Legally, the law refers to these as "employee negligence", though it may not hold them personally liable if they made the errors as part of the regular scope of their work. Employee negligence does not include criminal acts that lead to harm. For instance, employees are not merely negligent if they steal from customers or deliberately set fire to buildings. Instead, they are committing felonies. Employees can be held liable for financial losses or damages caused by their negligence or willful misconduct.

Negligent Entrustment

Negligent entrustment laws cover what happens if an employer entrusts a "dangerous" item to a worker who then goes on to cause harm with it. For example, supervisors may permit employees to drive a company vehicle to a client without a license or proper accreditation.

Employee negligence

While employee negligence can have legal consequences, the law may not hold employees personally liable if they made errors as part of their regular job duties. Instead, employers are generally liable for negligence under "vicarious liability" laws. This means that owners and managers are responsible for the wrongful acts or omissions of their employees. To avoid vicarious liability, employers must provide proper training and instructions to their workers.

There are several forms of employer negligence that can lead to liability:

• Negligent hiring: This occurs when an employer hires an employee without conducting sufficient background checks or due diligence, resulting in the hiring of an individual with a propensity for misconduct or unfit for the job.
• Negligent retention: This refers to keeping an employee in a position of authority or responsibility despite knowledge of their misconduct or unsuitability for the job, posing a danger to others.
• Negligent supervision: This arises when an employer fails to reasonably monitor or control the actions of an employee, particularly those who are unskilled or under-qualified.
• Negligent training: This occurs when an employer's training fails to prevent an employee from engaging in acts that harm others or fails to address a pattern of harmful behaviour.

Additionally, negligent entrustment laws come into play when an employer provides a "`dangerous`" item or instrument to an employee, who then causes harm to a third party. For example, allowing an employee to drive a company vehicle without proper licensing or accreditation can fall under negligent entrustment.

In summary, employee negligence can have legal implications, but employers are often the ones held liable under vicarious liability laws. To mitigate risk, employers should focus on proper hiring practices, training, supervision, and ensuring a safe work environment.

Frequently asked questions