By Michael Cormier
Summer’s fast approaching, and for many businesses that means seasonal hiring. In the good ol’ summertime, certain industries and individuals are looking to hire: landscapers, pools, pool maintenance companies, amusement parks, babysitters and nanny services, summer camp personnel, just to name a few.
This time of year, the legal doctrine of “respondeat superior” comes to mind more than any other time. What also comes to mind is the vital need for having a professional background investigation firm on board like Hire Authority (www.hireauth.com; 508-230-5901).
Respondeat superior is a term hailing back to medieval times. Roughly translated, it means, “Let the master answer.” In more modern terms, it means an employer may be liable for the actions of its employee.
Respondeat superior is one of those vicarious liability doctrines found throughout the American justice system that, at first glance, seems to defy good sense (not to mention fair play!). It leaves an employer scratching his head and asking (more likely shouting), “If my employee did it, and I didn’t foresee it or even authorize it, then why am I being held liable?”
To understand, you have to start with another doctrine your mother told you from the time you could walk: “Life isn’t fair.” At common law, courts were sometimes faced with conflicting values and interests that just couldn’t be resolved. But someone had to take a hit, and the court wanted to make it the one who could best absorb the blow no matter how unfair it seemed. (Some call it picking the deepest pocket, but you didn’t hear that from me.)
The theory with employer liability is that the employer will be held responsible because he put things in motion by hiring the employee and assigning him the task that did the harm. It doesn’t matter that it was the employee who screwed up—the employee is simply viewed as an extension of the company itself.
Now, don’t despair too much: Like most legal doctrines, there are notable exceptions to respondeat superior. First of all, the employee has to be acting within the scope of her employment. Thus if Sally gets in a car accident while commuting to work, her employer is not responsible. But if she gets in an accident while driving negligently on an errand for her boss, Mr. Boss may be held liable.
A second exception is a “frolic and detour,” which means that the employee was on company time, but wasn’t acting within the scope of her employment. Thus if Sally had snuck off to visit her boyfriend in the next town when she was supposed be running her errand for Mr. Boss, Sally would probably get stuck with it.
So why does all of this come to mind when summer rolls around?
Summer help often consists of people who are brand new to the company. Their skills are unknown, and so are their personalities and habits. Add to this the fact that summer jobs are often outdoor jobs—jobs where potentially harmful tools and products are involved—and the nature of the work itself can be dangerous. Just as important, summer help is often youthful, which means inexperience and lack of maturity.
Yet many of the jobs these young people are hired to do require great care. Here are just a few examples:
- Landscaper: Landscaping companies hire high school and college kids to use power tools like lawnmowers, leaf-blowers, rototillers, and other power equipment. They work outside, where they’re exposed to the public
- Nanny/Babysitter: People take time off in the summer, and often they look to a nanny or part-time babysitter service to help with childcare. The hazards of hiring an incompetent childcare worker are obvious and cannot be overstated.
- Lifeguard: Private lifeguards are hired not only to save people from drowning, but also to ensure the safety of the entire pool or beach environment. Accidents around their worksite can be devastating.
- Summer Camp Counselor: Camp counselors are responsible for the safety of children in a variety of potentially dangerous situations, from swimming and boating to hiking and climbing and—well, you name it.
- Amusement Parks: The operation of most rides—even the tiniest kiddie rides—is potentially dangerous. So is the preparation of hot foods and drinks and operation of maintenance equipment
So how do you cut your risk of hiring negligent or incompetent summer help? One important way is to have a system in place for screening prospective employees for potential problems. Checking criminal backgrounds, driving records and personal references, for example, can go a long way toward determining if this person is the kind of responsible, even-tempered and conscientious individual you want working for your company.
As you beef up your staff for the summer season, also beef up on your protection. Get a reputable and experienced background investigation firm like Hire Authority (www.hireauth.com; 508-230-5901) on board. It’s worth it.
The foregoing should not be construed as legal advice. Employers should always consult their own legal counsel for advice on labor and employment matters.