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  • MH3313

Is the Employer liable for the Employee?


Your employer may be liable for the actions of its employees. The legal terminology for such responsibility is respondeat superior or “vicarious liability. The basic idea is that an employer is vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment. By the same token that an employer is legally entitled to the rewards of an employee’s labor (profit), an employer also has the legal liability if that same behavior results in harm. Moreover, when someone is injured or harmed and needs to be compensated, who is the most likely to pay: the employee or the employer? Whether fair or not, the legal system is interested in making the victim whole, and assigning liability to the employer rather than the employee has the best chance of meeting that goal.


In determining whether the relationship is one of employer and employee or simply that of two independent contractors, the basic inquiry is whether such person is subject to the alleged employer’s control or right to control with respect to his physical conduct in the performance of the services for which he was engaged. The hallmark of an employee-employer relationship is that the employer not only controls the result of the work, but has the right to direct the manner in which the work shall be accomplished. On the other hand, a contractee-contractor relationship involves that person engaged in work having exclusive control of the manner of performing it, being responsible only for the result. Other considerations include the nature of the work or occupation, the skill required for performance, whether the one employee is engaged in a distinct occupation or business, which party supplies the tools, whether payment is by the time or by the job, whether work is part of the regular business of the employer, and whether there is the right to terminate the engagement at any time. None of the factors is dispositive of a person’s status as an employee, and each case must be determined on its own facts.


Workplace harassment of employees by other employees has become an increasingly problematic source of business liability for employers. Workplace harassment violates federal law when it involves discriminatory treatment based on race, color, sex, religion, national origin, age, disability, and other factors. Workplace harassment is not merely teasing, offhand comments, or one-time incidents, but rather sufficiently frequent or severe conduct that may result in employment actions such as firing or demotion.


Even if the harassment did not lead to a tangible employment action, the employer may still be held liable unless it proves that (1) the employer exercised reasonable care to prevent and promptly correct any harassment; and (2) the employee suffering the harassment unreasonably failed to complain to management or avoid harm otherwise.


To bring a claim under federal law, such as Title VII of the Civil Rights act of 1964, employers must have a minimum number of employees. Therefore, it is important to work with an attorney to ensure the employer qualifies under each act.


Vicarious liability is a powerful tool in the hands of a victim’s attorney, and employers are wise to take steps to institute policies which tend to curb activities which could be injurious to others. RMN attorneys have years of experience and a wide breadth of knowledge. For a lawyer that is on your side, contact an RMN attorney today at lawyer@RMN-law.com or 4123-626-5626.

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