If one of your employees sexually assaults someone on the job, is your company liable? The answer depends on the extent to which 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 able to prove each element in court, the victim would be able to recover a judgment against the company based on that theory.

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

The type of background investigation required depends on the type of work. For example, an investigation may need to be more thorough if the prospective employee would be entering customers' homes as opposed to working outdoors. Still, there is no strict requirement for the employer to check with law enforcement agencies about an employee's possible criminal record, even where the employee is to regularly deal with the public. In fact, even actual knowledge of the employee's criminal record does not establish the employer's negligence in hiring him. This is because Florida's public policy is to give criminals a chance to turn their lives around and obtain gainful employment.

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

For both negligent hiring and negligent retention, the victim must prove a connection between the assault and the employment. This connection exists when: 1) The assault took place at a location in which both the victim and the employee were authorized to be; 2) the victim came into contact with the employee as a direct consequence of the employment; and 3) the employer would receive some benefit, even if only a potential or indirect benefit, from the meeting of the victim and the employee had the assault not occurred.

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

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

Case Law
Florida law provides little guidance on the issue of whether an employee was assisted in accomplishing the assault by virtue of the employment relationship. What little authority exists is based on highly fact-specific contexts.

In Agriturf Management, Inc. v. Roe, a company president's granddaughter accompanied her grandfather to work to help him clean and put away equipment on company property. On several of these occasions, the president sexually assaulted the granddaughter. The court found that the employment relationship did not further the president's assault. It provided almost no reasoning in support of this conclusion, and stated simply that the molestation was facilitated by the familial relationship as opposed to the employment relationship.

In arriving at its conclusion, the Agriturf court contrasted the facts of its case to Hennagan v. Department of Highway Safety and Motor Vehicles. It noted that in Hennagan a police officer allegedly used the authority of his office to lure a young woman into his car to assault her. In that case, the trial court threw out the case, but the appellate court reversed. The appellate court ruled the officer's conduct was not necessarily outside the course and scope of his employment, and that the victim should have been given additional time to prove this. The court did not discuss the degree to which the employment relationship furthered the assault. Rather, it focused its analysis on the fact that the officer's initial detention of the woman was motivated by an intention to serve the employer.

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

Several months later, the deliveryman returned to the apartment under the false pretense of needing a receipt for the television. After entering the apartment, the deliveryman brutally attacked the customer. The court ruled that the deliveryman's conduct was not within the course and scope of employment for the purposes of respondeat superior. Even though the deliveryman first came into contact with and learned information regarding the customer while on the job, the employer did not instruct him to return to the apartment to obtain a receipt. The court noted there was no evidence the deliveryman's acts were in furtherance of his employment.

Conclusion
In this area of the law, good business practices go a long way toward avoiding employer liability. Employers should document their background checks thoroughly. This documentation could be used as evidence to exonerate the employer in the event the employee commits a sexual assault on the job. Also, employers should regularly monitor and evaluate employees for any potential signs of them being unfit for duty.

Special Reports /

Sexual Assaults at Work: When Can the Employer Be Held Liable?

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