September 02, 2022
The short answer is the dreaded it depends (we know—clients hate this answer). So, we will clarify.
First, employers are generally responsible for the actions of their employees during work hours, work activities, and in work-related locations.
Second, employers typically are not liable for employee bad acts done off the clock, except if the employer is negligent.
This exception was amplified by a Dallas jury in Goff v. Holden & Charter Communications, LLC, when the jury found Charter, an $80B cable/communications company, liable for its employee’s theft and murder of a customer to the tune of $7.375 billion in compensatory and punitive damages (we are almost certain the verdict will be reduced on appeal).
You may be asking, “How is this possible?”. Well, Charter performed a background check which came back clear, and Charter has a policy against workplace violence. However, Charter never verified the employee’s— and now convicted murderer’s—prior employment history. If Charter had done that simple task, it would have discovered that the employee had been fired from other jobs for misconduct that included forgery, disregarding supervisor instructions, and unprofessional workplace conduct. The employee also omitted certain jobs from his application. By failing to conduct adequate due diligence, Charter made an unfortunate employment decision and exposed itself to massive liability.
The first lesson learned: employers must protect themselves by performing robust background check processes that meet or exceed industry standards, especially if employees visit customers where they are most vulnerable—in their homes.
Human resources and corporate security must work together to ensure that background checks request the necessary information and are completed quickly—and that reports are acted upon when they reveal problems.
Charter compounded its first mistake when it ignored red flags revealed by the employee during his employment. Nine days before the murder, he begged his boss for money. Eight days before the murder, he broke down at work after his wife left him. He misused a company van only a few days before the murder. Despite these multiple red flags, Charter did nothing and continued to send the employee into customers’ homes. Charter’s employees also admitted that they had not been trained to recognize workplace violence or warning signs that could contribute to such violence.
The second lesson learned: HR employees and security teams must implement protocols and training to prevent, address, and report potential workplace violence.
The attorneys at Farhang & Medcoff know how difficult it is to plan, manage, and respond to personnel issues. After all, we take care of our own personnel issues as an independent small business. If you are an employer and have questions about negligent hiring and retention, appropriate background checks, training concerning workplace violence red flags, or any other legal issue, please call us at (520)214-2000.
This writing is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by the dissemination of this writing.
