Employers Must Protect Themselves From Misconduct and Workplace Intentional Torts

Employers have been held directly and vicariously liable for acts of violence committed by or against their employees and third parties. Victims of these acts can recover compensatory and punitive damages directly from the employer. It behooves employers to be aware of the liability traps into which they can fall when they fail to take the necessary steps to create and promote a safe environment for both their employees and third parties.

An employer is directly liable when the employer knew or upon reasonable and diligent inquiry should have known of the tortious conduct or propensity for the tortious conduct but failed to take immediate and appropriate preventative or corrective action. Under direct liability, the employer is held liable for its own conduct, negligence, or recklessness, and not that of an ordinary employee or low-level supervisor.

An employer is vicariously liable -- that is, legally responsible for an employee's tortious conduct -- when an employee causes harm while acting within the scope of his employment and furthers the interests of the employer. Most commonly, the tortious conduct arises out of a work-related dispute or altercation, or an incident occurring as a result of the employee exercising or performing his job duties. While it may be difficult to conceptualize when an employee's intentional act of harm is considered to have been conducted within the scope of his employment, under Florida law, vicarious liability is generally found when the conduct: 1) is the kind the employee was employed to perform; 2) occurs within the time and space limits of employment; and 3) is activated, at least in part, by a purpose to serve the employer.

When an employer is held directly liable for the employer's own acts or omissions committed by its supervisors or other management employees, the employer's misconduct may result in a finding of negligent hiring or retention. Under Florida law, negligent hiring or retention occurs when, during the hiring of an employee or during the course of employment, the employer becomes aware or should have become aware of problems with an employee's fitness and the employer fails to take further action, such as investigation, discharge, or reassignment. The ultimate question of liability is whether it was reasonable for the employer to permit the employee to perform his job in light of the information that the employer knew or should have known about the employee (such as a criminal background, history of violence or sexual harassment, or other information that indicates the employee may pose a risk). Negligent hiring or retention claims are usually brought in conjunction with another tort claim, such as assault or battery.

Although claims of assault and battery are often brought together, they are separate legal claims. In the employment context, a sexual harassment claim where physical touching is alleged is often coupled with claims for assault and battery. An assault occurs when there is an unlawful threat or attempt to harm another person physically. Battery occurs when the assault is placed into action, resulting in a harmful or offensive contact with a person. For vicarious liability claims, Florida courts have ruled that sexual assaults are outside the scope of employment, unless such conduct furthers the employment relationship. Where applicable, an employer may be held directly liable for negligent hiring or retention of the offender.

False imprisonment is defined as the unlawful restraint of a person against his or her will. Claims for false imprisonment can be brought by employees or customers and occur frequently in situations of suspected shoplifting or employee theft.

Although not all workplace intentional torts are predictable, many can be prevented through implementation and enforcement of effective workplace policies and employee training. Employers should take the first step now, before tortious acts occur, to review and revise their workplace violence policies and hiring practices and train their employees regarding these policies in order to help prevent such conduct from occurring.

Lillian Chaves Moon is an attorney in the Orlando office of Jackson Lewis LLP. She may be contacted at 407-246-8452.