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EMPLOYER LIABILITY FOR ACTIONS OF EMPLOYEES

The COVID-19 pandemic has many employers concerned about their liability for the actions of employees. Generally speaking, employers can be held liable for the actions of their employees based upon a theory of Respondeat Superior or Negligent Hiring/Supervision.

Respondeat Superior and Vicarious Liability

Respondeat superior imposes vicarious liability on any third party that had “the right, ability, or duty to control the individual who caused a personal injury or property damage.” Typically, in order for Respondeat Superior to apply there must be an employer/employee relationship, and an employer is not held liable for the actions of an independent contractor. However, many employers misclassify employees as independent contractors, and just because a company classifies someone as an independent contractor does not mean the company can avoid liability.

Three factors are taken into consideration when determining if vicarious liability is applicable:

  • Was the individual causing the injury or damage an employee when the event occurred?
  • Was the employee acting within the scope of his or her employment?
  • Did the activities of the employee benefit the employer?


An employee’s conduct generally fits within the course and scope of employment if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits of the employment; (3) it is actuated, at least in part, by a purpose to serve the employer. In Pennsylvania, commuting to and from work is typically considered to be outside the scope of employment. However, there are exceptions. The Commonwealth Court of Pennsylvania noted that one of the exceptions to the “going and coming” rule is a traveling employee who has no fixed place of work.

With motor vehicle accidents, scope of employment determination can involve the “detour and frolic” test. A detour is a slight deviation from the task required by the employee (e.g., an employee making a delivery to a client travels a few miles out of the way to stop at her favorite diner). A frolic, on the other hand, involves a significant deviation from the employer’s instructions for the employee’s own benefit or personal gain (e.g., an employee making a delivery drives 25 miles out of his way to visit a friend). In the case of a detour, the employer could still incur liability, while a frolic does not typically lead to employer liability.

Negligent Hiring, Retention or Supervision

Even if an employee’s actions fall outside the scope of employment, an employer can still face liability under the legal theory of negligent hiring, retention or supervision. A claim for negligent hiring under Pennsylvania law requires proof that (1) an employer knew or should have known of an employee’s propensity for violence, and (2) the employment created a situation where the violence could harm a third party. Retaining an employee known to act in a manner dangerous to others may subject an employer to liability. An employer may also be liable for negligent supervision if it knew, or should have known, that an employee had dangerous propensities that might cause harm to a third party.

In addition to vehicle accidents, employers have been found to be liable for:

  • assault and battery committed by employees;
  • sexual abuse committed by employees;
  • theft and fraud committed by employees;
  • discriminatory actions of employees; and
  • workplace harassment perpetrated by employees.

Mitigating Employer Liability

An employer can take certain steps to reduce the likelihood of incurring liability for employees’ actions. One potential step is conducting a background check on prospective employees. (In doing the check, the employer must comply with the Fair Credit Reporting Act.) Before using background checks, an employer should consult an employment lawyer because different municipalities and states have enacted laws prohibiting criminal background checks entirely or until after a job offer has been made.

Another step, which is crucial, is for an employer to have comprehensive, company policies that clearly state what is expected of employees, and what kinds of behavior will not be tolerated. An example would be a zero-tolerance violence policy. Ideally, the policies should be included in an employee handbook, and employees would sign an acknowledgement stating they received and read the employee handbook. Employees should be given feedback when they are and are not properly following procedures.

Finally, employers must promptly address problems when they arise. This should be done through proper investigation of allegations and disciplinary action when appropriate.

Although independent contractors don’t typically expose an employer to liability, it is important that workers are classified properly. Erroneous classification can result in employer liability for uncollected tax, back pay and issues with employee benefit plans.

Hypothetical Situations

An employer provides an employee with a company car for an overnight trip to visit a client. After arriving, the employee drives to a shopping mall near the hotel. While returning to the hotel, he crashes into another vehicle injuring the driver.

An ex-employee of an electrical service company shows up at a customer’s home. Unaware that he is no longer with the company, she lets him in relying on his representation that he was there at the company’s direction. The ex-employee physically attacks her.

So, which of the two employers is likely to face legal liability? Potentially, they both can. The first case may hinge on the determination by the jury or judge on whether the trip to the shopping mall constituted a detour or a frolic.

As for the second case, the Pennsylvania Superior Court noted in Coath v. Jones that “an employer may be negligent if he knew or should have known that his employee had a propensity for violence and such employment might create a situation where the violence would harm a third person.” Regarding the question if the negligence ceases when the employee is discharged, the Court opined that “where the employer has created a special relationship whereby his customers admit his employee into their homes then the employer may be required to give notice or warning to the customer that the employee is no longer employed”.

Employer liability cases can be very complex, requiring the knowledge of an experienced attorney. To speak with one of HKQ Law’s employment attorneys, call (800) 760-1529.

About HKQ Law

Hourigan, Kluger & Quinn is considered one of the top civil litigation and commercial law firms that has had the privilege of representing more families in the courtroom than any other NEPA firm. The attorneys at HKQ Law have been honored as Super Lawyers, Best Lawyers, Best Law Firms by US News and World Report, and have received the AV Preeminent Rating by Martindale-Hubbel. HKQ Law was recently recognized for one of the top 20 Verdicts in Pennsylvania.

The firm’s Personal Injury Team, led by Attorney Joe Quinn, Jr., has won some of the largest verdicts and settlements in the region's history. The Personal Injury Team focuses on a wide array of personal injury claims and civil litigation, including medical malpractice, auto and truck accidents, aviation accidents, unsafe vehicles, dangerous or defective products, workplace injuries (worker's compensation), construction site accidents, claim denials by insurance companies, dangerous drugs, defective children's products, nursing home abuse and neglect, and falls due to unsafe conditions (slip and fall).

Attorney Joseph A Quinn, Jr. is one of only 100 attorneys in the United States (and one of only three in Pennsylvania) honored with membership in the Inner Circle of Trial Advocates, and one of only 500 attorneys worldwide chosen to be a Fellow of the International Academy of Trial Lawyers. He has been a Pennsylvania Super Lawyer every year since the program began and has been listed in The Best Lawyers in America every year since the publication was established in 1987. Best Lawyers also named him top personal injury attorney for Northeastern Pennsylvania and the Lehigh Valley. In addition, Best Lawyers, in conjunction with U.S. News & World Report, has designated HKQ a Tier 1 Best Law Firm across multiple categories in Northeastern Pennsylvania and the Lehigh Valley.

Since the inception of the firm, the Commercial / Corporate Team led by Attorney Allan Kluger has provided comprehensive, integrated legal services to many of Northeastern and Eastern Pennsylvania's largest corporations, businesses, banks, non-profits and institutions, handling matters involving labor and employment, wills, trusts and estate planning, estate administration, elder law, commercial transactions, residential and commercial real estate, zoning, land use and development, telecommunications, mediations and arbitrations, commercial litigation, title insurance, business planning and business succession, corporate/business structuring, employment discrimination law for employers, banking, creditor’s rights, finance, lender liability defense, covenants not to compete, construction law, mergers and acquisitions and other business matters.

Additional information can be found at www.HKQLaw.com or by calling (800) 760-1529.

				

 

As Hourigan, Kluger and Quinn addresses the concerns raised by COVID-19, the health and safety of our clients, employees and friends of the firm remain our top priority.


These are very difficult and scary times and we hope that you and your loved ones are safe and symptom free. We recognize that so many of you are understandably anxious about your health, the economic impact of this pandemic and all of the consequences of social isolation.

We also recognize that many of you are anxious about how the coronavirus is impacting the Court systems, our firm and your cases. Although all of our offices are closed, our firm has remained fully operational and we have initiated procedures that allow all of our attorneys and staff to work remotely from their homes. Each of us and our staff will respond to any emails and calls about your cases as quickly as possible.

Our Federal and State Courts have instituted significant changes in their calendars as a result of the coronavirus. Although most courthouses are closed to the public, and Hearings and Trials will be delayed for some time, there are matters that can proceed telephonically and by video. Despite these changes in the Court calendars, we are working diligently on your cases and are determined to do whatever we possibly can to assure an early and just recovery for you and your loved ones. Even under these difficult circumstances, we believe that "Nobody will work harder for you than we will."

With regard to new potential clients, we are not in a position to have an in-person new client meeting, but we will be conducting these initial meetings via phone. New potential clients should call us for a free telephone consultation at (570) 287-3000.

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