By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This article contains content adapted from lesson material written for APUS classes. This is the first article in a seven-part series on the particulars of employment negligence law and smart employer strategies.
In a separate series, we discussed the nuances of employment discrimination and all the ways that employers can violate the law in their hiring of employees. However, assuming that a job applicant makes it over these hiring hurdles and the employer is preparing to make a job offer, there are several things that the employer should know to avoid liability in hiring.
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Most of the liability that an employer might face in the employment context comes in the form of negligence, either directly or vicariously. There are other potential grounds for liability, including contract-related matters. However, the vast majority of employees are not hired by contracts — that is to say, most employment is “at will.” This series will focus mainly on concerns related to employment negligence.
Negligence Concerns Unintentional Harm that Results from a Failure to Use Reasonable Care
In order to benefit from any complex discussion about employment negligence, we must first understand the basic definition of negligence. Negligence in the legal arena concerns unintentional harm that results from a failure to use the care that would be expected of a reasonable person under the same circumstances. Negligence is usually a civil tort (i.e., a legal wrong), but it may rise to the level of criminal culpability if the conduct is sufficiently reckless or severe.
The Four Key Elements of Employer Negligence
Generally, negligence has four key elements:
Duty — In order for someone to be guilty of negligence, he or she must first have had a “duty of care.” An example will serve to illustrate. Suppose Steve, a passerby, comes across Bob, a person in peril. Bob has suffered a heart attack and is in need of immediate medical attention.
Now, as heartless as it might be for Steve to decline to help Bob — even by simply calling 911 — Steve has no such general legal duty to do so. Thus, there can be no negligence. But in the employment context, employers almost always have a duty to maintain a safe and secure environment for their employees and customers.
Breach — In addition to the existence of a duty, the accused in a court of law must also have breached — or not performed — his or her duty. Suppose that Steve is a server in a restaurant, and Bob is his customer when he suffers a heart attack.
Under these circumstances, Steve probably does have a duty to help Bob. If he fulfills that duty by calling 911, obviously there can be no negligence. This element of breach is the focus of many, if not most, negligence disputes.
Damages — In order for someone to be found guilty of negligence, whatever duty in question that is breached must result in damage of some kind. If Steve fails to help Bob and Bob more or less immediately recovers from his heart attack on his own with no lasting harm of any kind, he cannot successfully sue Steve for negligence. Bob must have sustained damage.
Note that damage need not be physical in nature, though. Bodily injury is of course a form of damage, but emotional harm and even financial loss (e.g., theft or destruction of property, value, or earnings) will also suffice for damage.
Causation — The final element of negligence requires that the breach of duty must be both the direct and proximate cause of the damage in question. Keeping with our Steve and Bob example, suppose that Steve fails to help Bob, but someone else in the restaurant calls 911. Emergency services arrive and transport Bob to the hospital by ambulance.
Along the way, however, the ambulance is in an accident and Bob is badly injured (i.e., the accident causes injuries unrelated to Bob’s earlier heart attack). Now this is indisputably a very bad day for Bob, but it is unlikely that Steve would be found responsible for Bob’s injuries from the accident. The accident was a superseding and intervening cause of Bob’s injuries, which Steve could not reasonably have foreseen.
Note: The difference between “direct” and “proximate” causation is a rather complex legal distinction beyond the scope of this discussion. Employers should simply look for “causation” in its generally understood meaning, and consult legal counsel when questions arise.
Now that we have a clear understanding of negligence, we can discuss the ways in which employers may be found negligent for the actions of their employees. There are several ways in which such claims can be established. Two of the most common ways are:
1. through proof that an employer knew or had reason to know that an employee would behave in a negligent manner; and
2. through vicarious liability for the actions of employees acting within the scope of their employment.
In the next part of this series, we’ll begin to examine these two different ways that disputes over negligence commonly emerge. We’ll also look at ways that employers can reduce their risk exposure with respect to both types.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
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