Jottings By An Employer's Lawyer

Wednesday, April 26, 2006

Mr. Employer - You Should Have Protected Me


From your employee. That's the chilling story in The Perils of Management: When the Right Moves Go Wrong, relayed in Workers Comp Insider, which as here, often has great workplace information and insights beyond the boundries implied by its title.

The set up is great:
You have a valued employee - a good producer - with a drinking problem. Ever since a traumatic divorce, his performance has suffered. He misses a meeting with a major client. You encourage him to seek help through the Employee Assistance Program. He voluntarily enters a detoxification program. He participates in Alcoholics Anonymous twice a week. He sees a counselor.
Yet his performance continues to erode. You suspect he may be drinking again. You call him into your office. He seems a bit spacy - might be taking a decongestant for a cold. You don't smell any alcohol, but you ask him if he had been drinking. He looks at you unflinchingly and says no. You give him yet another stern warning that unless his performance improves immediately, you will have to terminate him.
You're trying to be a good manager. You really want to help this guy, a valued employee. But how far do you go? When do you draw the line? You shake your head as he walks out of your office.
No manager can read that without having the queasy feeling that could be me (maybe even thinking, "I hope I would handle it that well.") What follows are a fatal crash, with the employee who left the office 3 hours earlier testing out at .40 blood alcohol level, and a lawsuit by the survivors of the family killed in that crash in which the employer is now a defendant.

Although I don't necessarily agree that it is certain there will be a large settlement -- the law does still have some limits on an employer's responsibility for its employees' off duty conduct -- there is no question that in a society where someone must pay for a wrong, those limits are continually being pushed.

Here the allegation is that an employer's knowledge of an employee's drinking was the problem; a few months back, a New Jersey court refused to dismiss a case where the mother of a molested child sued her husband's employer claiming that if the company had policed his computer viewing habits and turned him into the authorities for viewing sites with child pornography he would not have photographed her daughter (his stepdaughter) and submitted her pictures to those sites. See Employers Have Duty To Investigate Worker’s Online Pornography Viewing [pdf]. A dozen years ago, the Texas Supreme Court spared employers the agony of being the relationship police by holding that an employer was not responsible to the injured spouses of two of its employees who had engaged in a consensual sexual relationship, Helena Laboratories Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994) (per curiam), but it had to reverse an intermediate court of appeals that thought that was a proper role.

The basic concept -- negligence on the part of the employer in selecting or retaining an employee -- has a long history in American common law, but extending that responsibility to conduct not related to work is a dangerous precedent. The more extenuated the connection to the workplace the worst policy it becomes.

Carried too far, it could at some point completely shift the risk of harm to third parties for all but the unemployed. If you doubt that, consider this simple syllogism --

all humans are flawed and capable, through intent or negligence, of harming others;

all employees are human;
therefore all employees are capable of harming others.
Sometimes, if the suit against the employer discussed in the opening paragraphs succeeds, legally speaking, even when doing right.



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