Employer Responsibility for Employee Criminal Acts

Hello, this is Keith Shindler, back with another session of Facebook Live. Today, we’re joined by Jessica Wong-Barrera. The purpose of these Facebook Lives is to bring to the Facebook community useful information that’s going to help our viewers recover the maximum compensation when they’re injured as a result of someone’s negligence. Sometimes it could also be intentional, but generally, these injuries are the result of negligent conduct.

Today, we’re going to talk about something that was in the news maybe a month ago. What happened, sadly, was a seven-year-old girl was playing on her driveway very innocently. She was allegedly kidnapped by a person who was driving for one of the largest parcel delivery companies in the world. And then sadly, they found that little girl murdered. The question becomes can the family seek justice? If they come to me, I’m going to help them Claim Their Justice.

This is a criminal act of a third party and generally, the law is, and this law goes hundreds of years back, an employer is not responsible for the criminal acts of one of its employees. It could also be an independent contractor. So we’re going to explore a little bit of that today. Remember, if you have any questions that we can help you with regarding serious personal injury cases, reach out to us at 847-434-3555. You could also get us on the internet at ClaimYourJustice.com or reach us through Facebook here.

What is the theory of liability that you would assert on behalf of a client who is trying to hold an employer liable for the criminal act of one of its employees or independent contractors?

There are several theories, one of them could be negligent hiring, one of them can be negligent training, and another could be negligent supervision. These are all legal arguments that are designed to avoid the defenses that an employer would assert in saying “I’m not responsible for the criminal act”

What is negligent hiring?

Negligent hiring. Staying with this example, we see that the employer hired this person or agreed to otherwise contract with this person, and the employer failed to do a criminal background check. Had the employer done a criminal background check, they would have seen that this particular person, hypothetically, had two prior violent felony convictions, or was recently released from prison for a violent felony. We would argue it was negligent hiring in making that person an employee or independent contractor.

Society and I included, all want to give people who served their time a second chance, no problem with that. You have to balance that against the type of activity that that person is performing. So negligent hiring would be failing to do a background check. If you fail to do a background check, you can’t argue that it wasn’t foreseeable, that you didn’t think this person could commit another violent act.

A background check would have shown, hypothetically, that there were two prior violent felonies. If you’re going to hire that person, they may need a little more supervision than just letting them perform the services and duties and job description the same way someone else would with no criminal background. That would be negligent hiring.

Okay, Can you tell us about negligent supervision and negligent training?

Yes, negligent supervision would be that if you have a person that you want to give a chance to, as you should to a person who may have a criminal background, you should supervise that person, you should maybe do a little extra supervision. It could be that the employer has to install a camera in this particular case in the car, or you have to have the person work in a team of two that would otherwise normally be only a team of one doing the job.

You have to provide supervision. If you as an employer want to avoid liability for an accusation as serious as this, then you need to make sure you’re able to protect yourself from the foreseeability argument. In court I’ll say Claim Your Justice is representing this person that was injured by a criminal act of your employee, it was foreseeable what your employee did to my client, and you should have supervised it better, so it will be negligent supervision. What’s next?

Well as you know, this is a very, very sad story. We feel for the young girl’s family. You were talking about the employee and the independent contractor, I thought you said you could only try and hold the employer responsible if the person that committed the criminal act was an employee?

Okay, so we’re talking about the difference between employees and independent contractors. Another defense employers used to use regularly is that we’re only responsible for employees because we provide the tools, the hours, the place for employment, and many other variables.

However, the law has extended to independent contractors to say you need to make sure if you’re having an independent contractor work for you, you do the same type of training, supervision, and hiring checks that you would do if it was your employee.

It’s not going to be an escape hatch for the employer or the person who hired the independent contractor to avoid a theory of liability for the criminal act of a third party. Anything else on your list of questions you want to discuss y’all we have?

If someone else comes to us at CYJ with the same scenario, would we be able to help them?

Yes. That’s why we want to keep educating the Facebook community so that people are aware of their options. Don’t think you’re down and out without a case. Call us it doesn’t take long for me to analyze whether there’s a theory of liability to pursue, and you as the person who’s injured, don’t want to wait, call right away.

We hope you’ve enjoyed the information, and learned from some of the information provided today. Remember, you can reach me or Jessica at Claim Your Justice at 847-434-3555 or ClaimYourJustice.com. Have a nice rest of your week. Bye.