Builders and Contractors Exchange
Weekly Bulletin: 18 jan 2008
WHEN IS AN EMPLOYER LIABLE FOR THE WRONGFUL ACTS OF ITS EMPLOYEES?
Your employee decides to commit a criminal or tortious act against another employee or customer. Can the employer be liable for the employee's conduct? That depends on whether the employee departed from the employment relationship at the time the injurious act was committed.
Under the doctrine of respondeat superior, an employer is liable for the wrongful acts of his or her employee if the employee was acting within the scope of his or her employment. The fact that an employee is at his or her employment at a particular time and location when the tortious act occurs is not enough to establish employer liability. Rather, there must be a determination of whether the service itself, in which the tortious act occurred, was within the ordinary course of the employer's business. In other words, the employee's conduct must be related to the nature of the employment.
In several Virginia cases, the courts have defined the instances where an employer may bear liability for an employee's tortious conduct. In Gina Chin & Associates, Inc. v. First Union Bank, 260 Va. 533 (2000), a bank teller participated in a scheme to embezzle money and in Majorona v. Crown Petroleum Corporation, 260 Va. 521 (2000), a gas station attendant sexually harassed an employee during the course of payment by the customer. In those cases, the courts found that the employee's wrongful conduct was related to the nature of the employment. In contrast, in Blair v. Defender Serv., Inc., 386 F.3d 623 (4th Cir. 2004), the court found that a janitor's assault of a Virginia Tech student was not within the scope of his employment. As the court reasoned, the janitor who attacked Blair acted independently and outside the scope of his employment when he assaulted her in the restroom. Respondeat superior claims are often raised in tandem with other employment claims such as discrimination claims under Title VII. Employers should be wary when these types of claims are raised in litigation, as Virginia does not impose any limitation on damages for these claims, as allowed for under Title VII.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.