Written by: Michael Cormier
It’s a well-known fact that hiring the wrong person can be a costly mistake. Lost hiring time,
lost training time, not to mention the cost of providing wages and benefits to an unproductive
But that’s just the proverbial tip of the iceberg.
We’re talking about employer liability, of course – the negative value of hiring an employee who
causes damage while engaged in his job duties. Under the legal doctrine of respondeat superior
(translation: “let the master answer”), the employer will usually be held liable whenever the
employee was acting in the scope of his duties.
So, for example, if a pedestrian is injured by a careless delivery driver, the driver’s employer is
most likely on the hook.
No-brainer, you say, and you’re right. The employee was acting under his employer’s direction,
therefore the employer (or insurer, anyway) gets stuck with the bill. Classic respondeat superior
But read on.
What if that delivery driver stopped for a liquid lunch and was drunk when the accident
happened? Well, that’s an intervening cause, you might say, something outside his duties and
even forbidden under company rules. As his employer I can only control so much!
If that driver had a history of drunk-driving convictions – even if none of them was in the course
of employment – you, the Employer, may become responsible.
Why? Because you knew or should have known that this person was a danger to the community
if allowed to drive a delivery truck. That’s what his lawyers would argue. And there’s a pretty
good chance the judge or jury would buy it.
That’s because the legal system wants to make that pedestrian whole. And it’s much more likely
that the employer will have the means to do that.
To justify this result, they reason that you, the employer, had the means to prevent this driver
from getting behind the wheel. How? By way of a background check. If you had checked his
background, you would have discovered that he was a bad risk and he wouldn’t have been
allowed to drive your truck drunk. Case closed.
So now you’re out maybe hundreds of thousands of dollars. But the insurer will pick up the
tab, you say? Maybe. For years insurers have fought claims filed by employers based on
the definition of “accident” in their insured’s policy. So, going back to the example of the
delivery driver, what if he had a history of road rage convictions, and instead of being drunk, he
purposely hit the pedestrian for crossing against a green light – an intentional act?
Time to check your insurance policy.
Better yet, take some preventive measures before all the heartache and expense and loss of
reputation happen. Contact a reputable, full-service background investigation firm like Hire
Authority at www.hireauth.com or (508) 230-5901 to find out what they can do for your peace of
It’s better to pay a little now than a lot later.
The foregoing should not be construed as legal advice. Employers should always consult their
own legal counsel for advice on labor and employment matters.