Eric Moreno
Business Civic Liability Research Paper
MGMT 518
12/4/2012

Businesses today have to take a multitude of factors into consideration to try and stay on the positive end of the profit margin. One important factor that many businesses often overlook is the “ticking time bomb” that they may have already hired. Businesses need to realize the risk that they may be held civilly liable for some of the criminal acts of their employees. This is no black and white issue either; with the constantly changing and evolving legal system we have here in this country, any one act done by an employee can also be used to sue the employer. Why do businesses need to worry about this? Well, most plaintiffs will go after the deeper pockets of the employer, and juries may be more inclined to side with the plaintiff rather than one of these “big” companies. Therefore, it is important that business protect themselves from liability. The type of protection depends on the industry. Often, however, doing simple things like conducting a thorough background check, having a code of ethics or conduct can shield companies from liability. Conducting a thorough background check seems to be the most efficient way to protect a company from an employee’s criminal activity—by preventing that employee from working at the company in the first place. Filtering out employees with criminal pasts or problems with prior employers can help minimize the liability of a company from its employees’ actions. As we can see in the case of Jackson v. County of Wayne, ordering a thorough background check could have saved the County of Wayne from the large amount of legal fees and negative publicity. In this case, the County of Wayne contracted with a company, Juvenile Rehabilitative Services (“JRS”). JRS performed criminal background checks on all foster parents before sending a child to them. The foster father of Crystal Jackson, Rosario, had a criminal record but it did not show up on JRS’s check. Crystal reported that she was sexually abused by her father, and sued the county, claiming that they were liable due to their negligence. She claimed that the county acted with recklessness and gross negligence in failing to “supervise [JRS],” “conduct its own background check,” “properly train caseworkers,” and in failing “to protect her from the sexual abuse.” Jackson v. County of Wayne, No. 06-1605, 2007 U.S. App. LEXIS 2652 (3d Cir. Feb. 07, 2007). Ultimately, the court found that Crystal’s claim failed to meet the required elements of a claim for the violation of her substantive due process rights and granted summary judgment for the county.
Although the County won case and the following appeal, the negative stigma put on the County would not be removed as easily as the lawsuit and legal fees. The background checks done by JRS through the Pennsylvania police failed to find Rosario's prior criminal record when he lived in New York. “Rosario himself admitted to having ‘an extensive record of drug related crimes.’" Jackson, 2007 U.S. App. LEXIS 2652, at *105, n.3. A deeper and more extensive background check would have discovered these facts and Crystal would not have been put into such a dangerous situation. The County of Wayne, by providing its own background checks on each foster parent, could have avoided this whole situation.
An example where a company was unable to escape liability can be found in the case of Terry Frederick v Swift Transportation. In this case, a Swift Transportation tractor trailer, whose driver was under the influence of methamphetamines, collided with another trailer while the driver was attempting to enter a rest stop. Terry Frederick, who was asleep in the sleeping berth of the other trailer, sued Swift Transportation for the injuries he sustained. At the trial Frederick presented evidence regarding the Swift driver’s history, including “prior license suspensions, drug use, convictions, and failures on different portions of the necessary licensing exams.” Frederick v. Swift Transp. Co., 616 F.3d 1074, 1084 (10th Cir. 2010). The district court ruled in favor of the Fredericks, Swift appealed and the appellate court affirmed the district courts rulings. A simple background check would have turned up these prior offenses and prevented this walking liability from being allowed to drive company property.
Companies are less likely to be held liable for the acts of their employees if they have some sort of code of ethics or protocols in place and make them a part of the contracts of their employees. An example of this is the case J. Jude Quebedeaux v Dow Chemical. Julice Quebedeaux got into a fight with a fellow employee at Dow Chemical. He received injuries from the fight, and was fired from his job. He filed a lawsuit against Dow Chemical, alleging that they were vicariously liable for the injuries he sustained during the fight and the lost wages from being unjustly fired. Dow Chemical agreed to pay for the injuries he sustained, but argued on appeal that, because Julice broke the company protocol of fighting in the workplace they were justified in firing him, and therefore not liable for lost wages. Quebedeaux v. Dow Chem. Co., 820 So. 2d 542, 545 (La. 2002). The court agreed and reversed the damage awards for Julice. Having a code of ethics regarding employees’ personal conduct excused Dow Chemical from vicarious liability, because it provided the employer with a justifiable reason for firing the employee. Both Julice and the person who started the fight engaged in the fight, which is a terminable offense, so Julice was incorrect in trying to accuse Dow for wrongful termination.
Certain industries are required to have strict protocols and procedures in order to maintain a level professionalism. Police departments have many rules to make sure the officers do not abuse their authority. In one case, Richard Brasseaux v. The Town of Mamou, an off-duty dispatcher, Keith Lavergne, was at a bar outside of town. There was a fight and Lavergne injured Richard Brasseaux, who sued the Town of Mamou for his injuries sustained. The minute Keith flashed his badge as a police officer, the town of Mamou could have been found vicariously liable, but Keith acted “outside of the course and scope of his employment.” Brasseaux v. Town of Mamou, 752 So. 2d 815, 823-24 (La. 2000). Keith’s only duty was to transfers calls from dispatch to other officers. He tried to go beyond his duties numerous times before, but his superiors reprimanded him. Therefore, having strict descriptions of job duties and protocols for those job descriptions prevented the activities of Lavergne from falling under a broad description of his employment. Based on the testimony of the Chief of Police of Mamou, the Supreme Court of Louisiana reversed the lower courts ruling of the vicarious liability of the town of Mamou. Keith was engaged in a “purely personal pursuit, unrelated to his employment with the Town of Mamou.” Brasseaux, 752 So. 2d at 822.
As demonstrated by the cited cases, liability—both civil liability and liability in the court of public opinion—is serious matter that all business should treat with great care. Whether a business will be held civilly liable is often a complex legal question, as shown in the sample cases, and avoiding the expenses of trial and attorney’s fees should be an important goal for companies, regardless of the legal outcome. Therefore, when businesses have the opportunity to minimize the risks of their employees, they must do what is reasonable under those circumstances, and as demonstrated by this paper, quick and efficient actions include background checks, and protocols and procedures.

Cases Cited

Jackson v. County of Wayne, No. 06-1605, 2007 U.S. App. LEXIS 2652 (3d Cir. Feb. 07, 2007)

Quebedeaux v. Dow Chem. Co., 820 So. 2d 542 (La. 2002)

Brasseaux v. Town of Mamou, 752 So. 2d 815 (La. 2000)

Frederick v. Swift Transp., 616 F. 3d 1074 (10th Cir. 2010)