If you are a business owner, you should know that you will not only be held responsible for the direct consequences of your actions, but you will also be held responsible for the misdeeds of your employees.
Employers are seen as directing the conduct of their employees, so they should share not only the good results of their behavior, but also the bad ones. Just as an employer gets to enjoy the fruits of an employee's good conduct, an employer must also share in an employee's penalties when the employee fails to perform his or her duties with diligence.
Furthermore, when a person is injured, harmed or suffers a loss as a result of negligence or unprofessional conduct by an employee, the legal systems main interest is to compensate that person. Even if it doesn't seem fair, an employer is more likely to have the financial capacity to compensate someone than an employee. Hence, liability is often assigned to the employer.
Roughly translated, respondeat superior means "let the master answer". It is a legal principle that requires an employer to be held liable for the negligence of his or her employees that results in an injury to a customer. According to this principle, an employer may be held liable for an employee's mistake if:
• The injury occurred while the employee was on the clock
• The injury was caused by an activity the employee was hired to perform
• The employer was benefiting from the activity in some way
For example, if you go to a hospital for a foot surgery, and the doctors and staff at the hospital end up committing an extremely negligent mistake, such as operating on the wrong foot, the hospital can be held accountable for this mistake. However, if the surgery was never officially registered and scheduled and paid for out of your pocket or insurance, then the hospital cannot be held liable for the mistake of the doctor and staff.
Employers also cannot be held accountable for injuries or losses caused to any clients or customers by an employee if the damages caused were a result of an activity the employee was not hired to do. For example, a hospital can be held accountable if one of its surgeons operates on the patient’s wrong limb because that is a surgeon’s job. However, if the surgeon accidentally hits a patient while parking his car in the hospital parking lot, then the hospital can't be held liable for the patient’s injuries.
Apart from hospitals, situations like these can present themselves in a variety of different commercial entities. If you own a car maintenance facility, one of your mechanics could damage a client’s car. Similarly, if you run an electricity repair or plumbing business, one of your electricians or plumbers could do something that could cause damage in a client’s home. If you run a restaurant, a member of your wait staff could spill a hot beverage on a customer.
How can employers protect themselves?
• Get yourself and your business insured
An employer's first step in protecting himself from the mistakes and misdeeds of his employees should be to have liability coverage. Most jurisdictions have laws that service providers must have liability insurance before they start operating but these laws are not always respected. This is unwise as liability insurance can protect you from citations resulting from accusations of poor work ethic and bad faith as well as from costs that come up from human error.
• Use proper contracts and appropriate clauses
Whenever your business is accepting new work or new clients, it is important to use proper contracts, and to include liability limitations in these contracts. Liability limitations can save you and your business from undue liability and minimize your exposure to the risk of a lawsuit. The language used in the contracts and the kind of limitations that you use should be decided with an experienced liability attorney who is familiar with the line of business you are in. A lawyer who has sufficient knowledge about the type of business you run will know about the risks involved in this particular business, the kind of clientele you receive and the sort of employees you are likely to hire. The lawyer will then be able to tell you what kind of language and limitations to put in your contracts in order to maximize your insulation from liability. For example, both car workshops and restaurants are open to the risk of liability because of mistakes or transgressions made by its employees, but the kind of risks they are open to are quite different. Therefore, a restaurant owner should work with an attorney who has a history of working with restaurants and a car workshop owner who has a history of representing workshops or mechanics.
• Vet your employee
It is important to go thorough background checks on all potential new employees when looking to hire someone for a job. Firstly, to check if they have all necessary certifications and qualifications to perform the job you are offering. This is especially important in jobs where there is an element of human safety involved. For example, if a hospital is hiring nurses and purposefully or due to lack of due diligence, hires nurses without the proper education or certification, and those nurses then make a mistake that results in bodily harm to a patient, the hospital can be held liable for the damages to that patient. Similarly, if a construction business hires an engineer without the proper qualifications to build a structure that is meant to support humans and it collapses, resulting in injuries or deaths, then the construction company can be held liable.
Secondly, it is also important to vet potential employees for past behavior and work ethic. Employers shouldn't take employees who change jobs very frequently and should contact past employers and ask them about the potential employees past conduct and professionalism. Employees should also do criminal background checks, especially for those employees who may visit clients or customers at their homes.
Attorney Blackie Burak has nearly 40 years of successful criminal defense experience. He effectively uses this experience to mount an aggressive defense against even the most complex DUI / DWI charges.