If one of your employees sexually assaults someone on thejob, is your company liable? The answer depends on the extent towhich the company created the opportunity for the assault to occur.Three main legal theories come into play here: negligent hiring,negligent retention, and respondeat superior. If the victim is ableto prove each element in court, the victim would be able to recovera judgment against the company based on that theory.

Negligent Hiring
To prove negligent hiring, the victim must show: 1) The employerwas required to make an appropriate investigation of the employeeand failed to do so; 2) an appropriate investigation would haverevealed the employee was unsuitable for the job; and 3) it wasunreasonable for the employer to hire the employee in light of theinformation the employer knew or should have known.

The type of background investigation required depends on thetype of work. For example, an investigation may need to be morethorough if the prospective employee would be enteringcustomers' homes as opposed to working outdoors. Still,there is no strict requirement for the employer to check with lawenforcement agencies about an employee's possible criminal record,even where the employee is to regularly deal with the public. Infact, even actual knowledge of the employee's criminal record doesnot establish the employer's negligence in hiringhim. This is because Florida's public policy is to givecriminals a chance to turn their lives around and obtain gainfulemployment.  

Negligent Retention
To prove negligent retention, the victim must show: 1) During theemployment, the employer was aware or should have been aware thatthe employee was unfit for the job; and 2) the employer failed totake further action such as investigating, discharging orreassigning the employee. 

For both negligent hiring and negligent retention, the victimmust prove a connection between the assault and the employment.This connection exists when: 1) The assault took place at alocation in which both the victim and the employee were authorizedto be; 2) the victim came into contact with the employee as adirect consequence of the employment; and 3) the employer wouldreceive some benefit, even if only a potential or indirect benefit,from the meeting of the victim and the employee had the assault notoccurred. 

Respondeat Superior
Under the doctrine of respondeat superior, an employer isresponsible for an assault committed by its employee even if theemployer was not negligent in hiring or retaining the employee.Instead, the victim need show only that the assault was committedwithin the course or scope of employment.

An employee's actions fall within the course or scope ofemployment when: 1) The conduct is of the kind the employee wasemployed to perform; 2) the conduct occurred substantially withinthe time and space limits authorized or required by the work to beperformed; and 3) the conduct is motivated at least in part by apurpose to serve the master. Generally, sexual assaults byemployees are held to be outside the scope of employment. However,an exception occurs when the employee was assisted in accomplishingthe assault "by virtue of the employer/employeerelation." 

Case Law
Florida law provides little guidance on the issue ofwhether an employee was assisted in accomplishing the assault byvirtue of the employment relationship. What little authority existsis based on highly fact-specific contexts. 

In Agriturf Management, Inc. v. Roe, a companypresident's granddaughter accompanied her grandfather to work tohelp him clean and put away equipment on company property. Onseveral of these occasions, the president sexually assaulted thegranddaughter. The court found that the employment relationship didnot further the president's assault. It provided almost noreasoning in support of this conclusion, and stated simply that themolestation was facilitated by the familial relationship as opposedto the employment relationship. 

In arriving at its conclusion, the Agriturf court contrasted thefacts of its case to Hennagan v. Department of Highway Safetyand Motor Vehicles. It noted that in Hennagan a police officerallegedly used the authority of his office to lure a young womaninto his car to assault her.  In that case, the trialcourt threw out the case, but the appellate court reversed. Theappellate court ruled the officer's conduct was not necessarilyoutside the course and scope of his employment, and that the victimshould have been given additional time to prove this. The court didnot discuss the degree to which the employment relationshipfurthered the assault. Rather, it focused its analysis on the factthat the officer's initial detention of the woman was motivated byan intention to serve the employer. 

The case of Tallahassee Furniture Company, Inc. v.Harrison does not involve a sexual assault, but it doesprovide limited insight into this issue. In Harrison, afurniture deliveryman attacked a customer while in the customer'sapartment. The deliveryman first came into contact with thecustomer while delivering a couch. On this occasion, the customergave the deliveryman a broken television set.

Several months later, the deliveryman returned to the apartmentunder the false pretense of needing a receipt for the television.After entering the apartment, the deliveryman brutally attacked thecustomer. The court ruled that the deliveryman's conduct was notwithin the course and scope of employment for the purposes ofrespondeat superior. Even though the deliveryman first came intocontact with and learned information regarding the customer whileon the job, the employer did not instruct him to return to theapartment to obtain a receipt. The court noted there was noevidence the deliveryman's acts were in furtherance of hisemployment.

Conclusion
In this area of the law, good business practices go a long waytoward avoiding employer liability. Employers should document theirbackground checks thoroughly. This documentation could be used asevidence to exonerate the employer in the event the employeecommits a sexual assault on the job. Also, employers shouldregularly monitor and evaluate employees for any potential signs ofthem being unfit for duty.