EMPLOYER LIABILITY FOR
ACTIONS OF EMPLOYEES
AND OTHERS
Chapter 5
TERMS
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Vicarious Liability
Liability
Negligent hiring (p. 86) (p. 96)
Negligent supervision (p. 87) (p. 97)
Negligent retention (p. 88) (p. 97)
Negligent selection (p. 92) (p. 97)
Liability of independent contractor
Ratification/condonation principle
Factors used to determine Independent contractor status
Liability for acts of volunteer (p. 94) (97)
MANAGEMENT CONTEXTS,
RELEVANT LAWS, AND CASES
(CASES WILL BE REVIEWED BY GROUPS)
LIABILITY OF EMPLOYERS FOR EMPLOYEES
Vicarious liability: Respondeat superior (let the master respond).
Employee actions must be within “scope of employment.”
Consider Smith v. Gardner
NEGLIGENCE IN
EMPLOYMENTRELATED DECISIONS
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Negligent Hiring
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Negligent Supervision
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Negligent Retention
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Negligent Selection
NEGLIGENT HIRING
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The question is
whether a manager
acted reasonable in
choosing a
particular person to
fill a position.
Is there a risk
created by exposing
members of the
public to a
dangerous or unfit
person.
Read p. 86 and
consider a possible
problem.
NEGLIGENT SUPERVISION
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The question is whether
a manager acted
reasonably in guiding
and overseeing an
employee’s action.
Consider:
Read 87 for example
NEGLIGENT RETENTION
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The question is whether
a manager acted
reasonably in retaining
an employee’s services.
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Consider:
read p.88
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NEGLIGENT SELECTION
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The employer has a duty
to choose an
independent contractor
in a reasonable fashion;
similar to negligent
hiring.
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Consider:
Lang v. Silva
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NEGLIGENT SELECTION
OF INDEPENDENT
CONTRACTORS
Exception to general rule
of nonliability for actions of
independent contractors.
Elements of negligence
apply if employer fails to
use due care when
choosing an independent
contractor.
LIABILITY FOR INDEPENDENT CONTRACTORS
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Employer avoids the prospect of vicarious liability
based on the independent contractor’s actions.
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Degree of control is critical.
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Independent contractor status is determined by
variety of factors.
COMPETITIVE ADVANTAGE STRATEGIES
LIABILITY RELATED TO EMPLOYEES
•
Develop and follow protocols for hiring employees, even when a
candidate is known.
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Include protocols for reasonable investigation into applicants’
backgrounds.
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Check references thoroughly.
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Train managers to supervise and discipline employees appropriately.
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Develop a no-tolerance policy regarding workplace violence and
inappropriate behavior, and train employees to resolve disputes.
TERMS AND CONDITIONS OF AN
INDEPENDENT CONTRACTOR AGREEMENT
LIABILITY FOR ACTS OF
VOLUNTEERS
Volunteer: Assists
organization in some
capacity for no
compensation.
Liability of a volunteer’s
acts depends on level of
control exerted over
his/her actions, not on
unpaid status.
Consider:
Lasseigne v. American
Legion Nicholson Post #38
LIABILITY FOR ACTIONS OF COLLEGIATE
ATHLETES
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Athletes are not agents of the
university, nor are they
employees.
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Courts typically hold that the
relationship between university
and its athletes is not one of
employer-employee.
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Vicarious liability should not be
imposed on a university for
actions of its athletes.
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Consider:
Kavanagh v. Trustees of Boston
University
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COMPETITIVE ADVANTAGE
STRATEGIES
LIABILITY OF CONTRACTORS AND
VOLUNTEERS
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Independent contractors:
 Develop a list of necessary credentials for independent
contractors, and hire only those who meet the criteria.
 Require a list of references, and check them carefully.
Volunteers:
 Screen and select volunteers with the same care that you
use for employees in the same capacities.
 Use particular care when screening volunteers who will be
in positions of authority and trust with minors.
CASE STUDY
P. 96
QUIZ
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1. Scope of employment means that an employee is acting to advance the business of the employer. T/F
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2. An organization can never be vicariously liable for the acts of a volunteer. T/F
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3. Negligent hiring occurs when an employer breaches its duty to hire safe and competent employees. T/F
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4 Most courts have consistently held that the relationship between a university and its athletes is one of
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a. Employer-employee
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b. Not employer-employee
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c. Principal-agent
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d. No relationship exists
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5. An organization may be vicariously liable for the actions of a volunteer if:
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a. The volunteer is being partially compensated
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b. The volunteer is also an athlete
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c. The organization exerts day-to-day control over the volunteer
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d. The organization is never liable for the actions of a volunteer
QUIZ ANSWER
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1. Scope of employment means that an employee is acting to advance the business of the
employer. _________A
2. An organization can never be vicariously liable for the acts of a volunteer. __________B
3. Negligent hiring occurs when an employer breaches its duty to hire safe and competent
employees. ______________A
4 Most courts have consistently held that the relationship between a university and its athletes
is one of
a. Employer-employee
b. Not employer-employee
c. Principal-agent
d. No relationship exists_________
B
5. An organization may be vicariously liable for the actions of a volunteer if:
a. The volunteer is being partially compensated
b. The volunteer is also an athlete
c. The organization exerts day-to-day control over the volunteer
d. The organization is never liable for the actions of a volunteer___________C
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Consider - Dr. H. Hamilton