How Much Protection Do Employers Owe to the Public At Large
Are employers obligated to protect the general public from off-the-job activity by their employees? That's the question that Mike Fox tackles in this post, Mr. Employer -- You Should Have Protected Me. For example, if an employer is aware that an employee has a drinking problem, is the employer liable when its employee leaves work drunk and injures or kills someone in a car accident? Or what about an actual case in New Jersey, where an employer has been sued by the mother, whose husband molested her child (his step-child). The mother argued that if the husband's employer had policed his Internet use and turned him in for viewing sties with child pornography, the husband might not have photographed the daughter and posted her photos on the Internet. The connection sounds far-fetched, but the court refused to dismiss the case.
The basic concept -- negligence on the part of the employer in selecting or retaining an employee -- has a long history in American common law, but extending that responsibility to conduct not related to work is a dangerous precedent. The more extenuated the connection to the workplace the worst policy it becomes. Carried too far, it could at some point completely shift the risk of harm to third parties for all but the unemployed.
The other adverse policy that I see coming out of holding employers liable is that it gives employers incentive to ignore their employees' personal problems like drinking, drugs or pornography addiction or simply terminate employees for those issues instead of trying to work with them. For example, in the drunk driving case, an employer would be better off simply ignoring an employee's drinking problem or firing him for showing up drunk, rather than directing him to counseling programs. I don't think employers should be penalized for showing compassion towards employees with various problems and yet, that's the direction in which we're heading as we try to hold employers liable for employee conduct that takes place after working hours.
Posted by Carolyn Elefant on April 28, 2006 at 06:50 AM | Permalink
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