Is the employer liable for an employee’s conduct in or outside the workplace?  Vicarious liability is the legal term outlining when an employer or principle is held liable for the wrongful acts committed by the employee, manager, supervisor, etc. within the scope of employment.  Defined in the California court system, as follows:

“Under the respondent superior doctrine, an employer may be vicariously liable for torts committed by an employee.  The rule is based on the policy that losses caused by the torts of employees, which as a practical matter are certain to occur in the conduct of the employer’s enterprise should be placed on the enterprise as a cost of doing business.”  (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280)

The answer is yes, the employer can be held liable for the actions of its managers, supervisors and employees.  The three primary reasons for implementing and ruling on this doctrine, is to prevent reoccurring conduct, greater assurance of compensation to the victim and to ensure equitable settlements to the victim. 

The courts have defined the course and scope of employment, to include:

  • Intent of the employee;
  • Nature, time and place of the employee’s conduct;
  • Type of work the employee was hired to do;
  • Incidental acts the employer should reasonably expect the employee to do;
  • Amount of freedom allowed to the employee in performing his or her duties; and
  • Amount of time consumed in the personal activity.

Infliction of emotional distress allows an employee to recover damages when the employer acts wrongfully; public policy violation or termination because of a disability. Employers can terminate someone legally.  If the organization terminates someone in an impermissible manner, they can be held liable for infliction of emotional distress with the past employee or even potentially a spouse if the emotional distress spills over outside of the workplace.  Courts have outlined four elements of an emotional distress tort:

  1. The defendant’s conduct was extreme and outrageous, beyond all bounds of human decency,
  2. The defendant intended to cause severe emotional distress to the plaintiff, or acted in disregard of a high probability that its conduct would inflict such harm,
  3. The defendant proximately caused emotional distress to the plaintiff, and
  4. The emotional distress was so severe that no reasonable person could be expected to endure.

A plaintiff’s success on an emotional distress story usually hinges on his or her ability to prove the first and fourth elements.  (Understanding Employment Law, 2nd Edition)

Thoughts and Suggestions:

  1. Review and Update Policies, Procedures and/or Employee Handbook
  2. Communicate expectations to the entire workforce
  3. Hold a separate training for managers and supervisors, they need to understand that they are held to a higher standard in the workplace
  4. Conduct Annual Training’s on Policies, Using Examples and Situations
  5. Consistently enforce policies and procedures throughout the organization
  6. If you have traveling employees, reinforce expectations of on the road behavior
  7. Review Local, State and Federal Laws
  8. Laws can change (New York State Sexual Harassment/DHR Laws)

I’m happy to work with any organization that has questions on policies, procedures, handbooks and/or training.

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Published by Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered MCIPD Lean Six Sigma Black Belt ABOUT: Matthew Burr has over 18-years of experience working in the human resources field, starting his career as an Industrial Relations Intern at Kennedy Valve Manufacturing to most recently founding and managing a human resource consulting company; Burr Consulting, LLC, Talentscape, LLC and Co-Owner of Labor Love, a Labor, and Employment Law poster printing company. Prior to founding the consulting firm, the majority of his career was heavy industry manufacturing and healthcare. He specializes in compliance auditing, training labor and employment law, conflict resolution, performance management, labor, and employment relations. Matthew has a generalist background in HR and operations, while providing strategic HR and operational solutions to his clients, focusing on small and medium sized organizations. He works as an Adjunct at Alfred State University, Tompkins Cortland Community College, and Montgomery Community College. He successfully designed an HR Concentration in the business management major that aligned with both SHRM and HRCI certifications, providing opportunities for students to sit for both the SHRM-CP and aPHR certifications upon completion of the degree, concentration, and internship hours as an Assistant Professor of Management at Elmira College (Retired January 2022). Matthew is also the SHRM Certification Exam Instructor, with a current pass rate of 92% on the SHRM-SCP and 83% pass rate on the SHRM-CP and a combined 88% on both exams over a 7-year period of instructing the course (Elmira College, Collin College & The College of St. Rose). Matthew works as a trainer at Tompkins Cortland Community College, Corning Community College, Broome Community College, and HR Instructor for Certification Preparation for the Human Resource Certification Institute (HRCI). He also acts as an On-Call Mediator and Factfinder through the Public Employment Relations Board in New York State, working with public sector employers and labor unions. PUBLICATIONS: Matthew has over 70+ publications including, American Bar Association (ABA) Experience Magazine, Cornell HR Review, Business Insider, New York State Bar Association (NYSBA), PayScale, Society of Human Resource Management (SHRM), and Expert 360 (in Australia). In early 2017, he published his first book, “$74,000 in 24 Months: How I killed my student loans (and you can too!),” proceeded by his second book, which was published in January 2021, “Slay the Student Loan Dragon: Tips and Tricks on How to Conquer the Student Loan Game” and his most recent book, “Unbox Your HR Career” in July 2023. VOLUNTEER WORK: Matthew is currently the New York State Society of Human Resource Management (NYSSHRM) District-Director. EDUCATION & TRAINING: Additional Training & Development:  SHRM Workplace Coaching and Mentoring Recertification Program, 2020  SHRM Foundation Employing Abilities @Work Certificate, 2020  SHRM Foundation Veterans at Work Certificate Program, 2018  Delta County Chamber of Commerce: Delta Force Leadership Program, 2013 FEATURED IN & ON: Matthew was featured on CNN Money, Fast Company, Fits Small Business, Fox News, Magnify Money, Monster.com, My Twin Tiers, Namely, Student Loan Hero, Smart Sheet and CEO Blog Nation, Human Resource Certification Institute (HRCI), Society of Human Resource Management (SHRM). Burr Consulting, LLC Capabilities Statement General Information: Burr Consulting, LLC Owner: Matthew W. Burr Mission Statement: “Strategically Aligning HR as a Partner for the Success of Your Business” Contact Information: Burr Consulting, LLC What's New in HR Blog Talentscape, LLC Labor Love, LLC (Labor Posters) The HR Support Center The Upstate HR Podcast (607)227-4386 Matthew@Burrconsultingllc.com Facebook: Burr Consulting, LLC LinkedIn: Burr Consulting, LLC Twitter: @Burrconsulting Online Certification Verification: Credibly Dun & Bradstreet (D&B) Number: 080776443 NAICS Codes: 541612, 923130, 54161, 541611, 541613, 611430, 541618, 561312, 561311 SIC: 8742, 8748, 9441, 8748001, 8748026 Our Services HR MANAGEMENT New Hire Orientation; Temporary HR Support; Recruiting and Application Tracking; HR Compliance (ADA, FMLA); Employee Handbook; Policy and Procedure; HRIS; HR Audits; Job Profile Design and Revision; HR Key Performance Indicators; EEO Reporting and Classification; State Unemployment Insurance Services TRAINING & TRAINING DEVELOPMENT Organizational Development; Employee Relations; Workplace Violence; Harassment & Sexual Harassment; Union Awareness; Managerial EMPLOYEE & LABOR RELATIONS Employee Relations Training; Conflict Resolution; Mentoring; Workplace Investigations; Labor Contract Costing; Mediation & Arbitration Prep; Fact-Finding; Workplace Investigations; Coaching & Counseling; Performance Reviews; Contingency Plan Development; Contingency Plan Training; State of New York Public Employment Relations Board (PERB)PERB Mediation and Fact-Finding Panels (Albany, NY covering the Elmira, NY Area) HIRING & RECRUITMENT Applicant Tracking Systems; Metric Development; Interview Training; Workforce Planning; Recruitment; Interviews; Job Offers; New Hire Process POLICY & COMPENSATION Group Plans – Healthcare, Dental, Vision, Group Life, Short- and Long-Term Disability; Retirement – 401(k), Profit Sharing, Roth; Workers Compensation; Total Compensation Design and Strategy; Deferred Compensation Plans; Salary Surveys; Reward Systems; Online Payroll; Customized Payroll Processing; Employee Self Service; Customized Reporting HR COMPLIANCE MATERIALS Burr Consulting, LLC is excited to announce a new partnership with Labor Love LLC, expanding our services to include HR printed materials compliant with industry standards.

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