Defined, the legal scope of employment is the range of activities that an employee is reasonably expected to do as part of his or her job. Within this range of activities, the employer may be held liable for the employee’s actions when a third party is injured by the employee’s conduct.
Whenever a question pertaining to the “scope of employment” comes up, it is usually asking whether the employee’s actions during an accident were part of the job or if those actions were outside the scope of employment.
For instance, if a warehouse worker accidentally ran over a customer’s toe while operating a forklift, it would be fairly easy to say the employee’s actions were within the scope of employment when the accident took place.
An employer may be held liable for their employee’s actions if those actions relate to the job. For instance, if a gallon of milk falls off the shelf while a grocery store employee is stocking the shelf, and it hurts a customer, the employer may be liable for those injuries.
The employer can also be held liable for an employee who acts in a negligent way. Take the grocery store example. If the store employee spilled some milk in the aisle, failed to clean it up, and it caused a customer to slip and fall, the employer may have a lawsuit on their hands. In this example, the employee was negligent within the scope of employment, and their employer could be liable.
When considering what is outside the scope of employment, this typically would refer to a worker doing something that is not reasonably part of his or her job duties. If an employee acted in some way that was not consistent with the job, and another person (or even the worker himself) was injured as a result of those actions, the employer may not be liable.
Activities that happen outside the scope of employment are plentiful. For instance, if a delivery truck driver went outside of his delivery route to meet his girlfriend for coffee, and he hits a pedestrian en route to the coffee shop, liability would be outside the scope of employment.
Illegal activities are also considered outside the scope of employment. If a bartender is selling more than alcohol during his shift, those extracurricular activities would not be considered part of his regular job description. Other illegal acts, such as theft, assault, and battery would fall under the same umbrella of an employer not being responsible.
Since independent contractors are not considered “legal employees,” their actions may also be considered outside the scope of employment. In California, a recent Supreme Court decision narrowed down whether an individual is considered a worker or independent contractor, by applying an “ABC” test to the hiring entity.
If the company met the three conditions (A, B, and C), the worker would then be considered an independent contractor. If you have questions on independent contractors and the scope of employment, then contact an employment attorney for guidance.
Employer liability may be determined in the following ways:
- Respondeat Superior: The legal theory, “respondeat superior” means “let the master answer,” and applies to employers and their liability for employee’s and their actions. However, it only applies within the scope of employment.
- Workers Compensation: A type of insurance that protects employers from lawsuits by injured employees. This, too, only covers accidents that occur within the scope of employment.
- Vicarious Liability: A legal theory that says one party has the ability or duty to control another party. For instance, if a nightclub’s instructions or implied wishes for its bouncers were to use force if necessary, and one of the bouncers assaulted a patron, the bar may be held vicariously liable for the patron’s injuries.
- In cases of independent contractors, an employer’s liability is usually not of issue, unless the victim was owed a non-delegable duty of care. A non-delegable duty of care means the employer may contract out a job, but cannot contract out his or her legal responsibility.
- Negligent Hiring and Retention: Unlike with respondeat superior, the theory of negligent hiring and retention holds an employer responsible for an employee’s actions that take place outside the scope of employment. If an employer does not take care in the hiring and retention of employees, he or she could be held liable. For instance, if a garbage collection company knew about one of its drivers recently being convicted of DUI, they may be liable for negligent retention if the worker stays in the same position.
- Harassment: If an employer knows about harassment in the workplace and does nothing to prevent, stop, and correct the behavior, they may be liable. There are several defenses an employer can use against harassment claims, and an employment attorney can provide more information on the particulars of your case.
- Indemnification: In some cases involving employer liability, the offending employee may also be found liable for his or actions. If the employee was the only one being sued, he or she can usually seek indemnification from the employer if his or her actions were within the scope of employment.
Keep in mind that employer liability changes depending on the type of worker involved. They have different responsibilities if the worker is an employee, contractor, intern, or part-time/seasonal worker.
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If you have any questions regarding the scope of employment, you should consult a local employment attorney. A lawsuit in this area of the law can be daunting and complex. A skilled lawyer will be able to provide guidance, advice, and legal representation in the instance your case goes to court.