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Employer responsibility for employee misconduct

Business Tips by Donald K. Burleson, MBA

December 2010

IANAL:  I am not a lawyer and this is not legal advice.  If you want legal advice, consult an attorney, not my web pages!

As an employer, I am always concerned about the potential liability I might have for the misconduct of my employees.

Internet legal resources say that an employer bears responsibility employee misconduct,

"Under a legal doctrine sometimes referred to as "respondeat superior" (Latin for "Let the superior answer"), an employer is legally responsible for the actions of its employees.

However, this rule only applies if the employee is acting within the course and scope of employment. In other words, the employer will generally be liable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer's behalf when the incident took place."

Employer responsibility for Internet Misconduct

This doctrine suggests that an employer who provides Internet access to an employee is responsible for the bad acts by the employee, especially if the bad acts are in any way related to their job:

"A law firm issues cell phones to all of its lawyers, to allow them to call into the office and check in with clients when they are on the road.

A lawyer, driving, hits a pedestrian because she is completely engrossed in her telephone conversation with a senior partner in the firm.

The law firm will probably have to pony up for the pedestrian's injuries.

The Business Torts Journal notes that if your employee defames or libels someone in the course of doing their job, the employer is liable.

"Almost every state has held that an employer is not liable for an employee’s misconduct committed outside the course and scope of his employment.

However, about half of the states have carved out exceptions to this general rule and have held an employer liable to a third party for an employee’s nonwork-related act. . .

Some states have held an employer liable when its employee’s conduct is of the kind the employee is hired to perform and when the employee’s conduct occurs substantially within authorized time and space and is motivated at least in part to serve the employer."

Examples might include a computer programmer who harasses, libels or defames another computer programmer on an Internet forum or message board.

Scope of Employment and employer responsibility

If an employer gives an employee a computer and access to the Internet, and they no not place restrictions of the types of activities an employee may conduct, they are facilitating their bad acts, but only if the misconduct is in the course of doing their job.

"If your employee caused the injury while acting within the scope of employment, you will have to answer to the victim."

In the world of Information systems employees, the "respondeat superior" doctrine might apply when a computer system administrator publishes a libel about the vendor software package or defames colleagues who works in their field of expertise. The definition of conduct within the scope of employment is straightforward:

(1) it is of a kind and nature that the employee is employed to perform;

(2) it occurs substantially within the authorized time and space limits of the employment;

(3) it is actuated, at least in part, by a purpose to serve the employer; and

(4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer.

Employers responsibility for Internet misconduct

This article on employees Internet Misconduct says that employee web surfing can wipe out your business and that employers may be exposed to liability for torts, breach of contract, copyright violations, and for crimes arising out of an employee’s misuse of a workplace computer.

There are also special cases for an employees Internet criminal acts such as harassment and tortuous interference with business relationships.

Internet Libel at work:  Misuse of company equipment

The articles also suggests that a employer may be held accountable when an employee transmits or publishes false or defamatory material:

"In Gavrilovic v. Worldwide Language Resources, Inc., the Court held that a coworker’s e-mail statement that an employee of a military contractor was the military base “F*ck toy” was false and defamatory, as required for the employee to recover from the contractor for defamation."

This article says that an employee who posts harassing or defamatory statements while at-work will expose the employer to liability for their bad acts (see Blakey v. Continental Airlines (N. J. Sup. Ct., June 1, 2000) :

"Employers have been sued for copyright infringement when an employee downloaded copyrighted material from the Internet, for racial discrimination when employees circulated offensive emails, and for sexual harassment when employees posted harassing comments on an electronic bulletin board."

The point is that you, the employer, MUST monitor the activities of your employees.  If you do not monitor an employee, and they repeatedly harass or defame someone, the employer may be responsible for the damages:

"The New Jersey Supreme court reversed and remanded, holding that although `employers do not have a duty to monitor their employees' private communications, employers do have a duty to take effective measures to stop employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace."

However, this 2009 Wisconsin case limits the liability of an employer to only be responsible when "foreseeable" employee misconduct exists (e.g. a history of reprimands).

Are you an ISP?

Case law suggests that your companies Internet connection might quality you as the "provider of an interactive computer service", in which case you might be immune from the bad acts or an employee, per the DMCA section 230.

In the 2006 case: DELFINO v. AGILENT TECHNOLOGIES, INC., (US Supreme Court certiorari denied in 2007) the judge noted:

“An employer may be liable for an employee’s willful and malicious actions
under principles of ratification. An employee’s actions may be ratified after the
fact by the employer’s voluntary election to adopt the employee’s conduct by, in
essence, treating the conduct as its own. . . "

For more current case law on who is a provider of an interactive computer service, see Zango v. Kaspersky Lab, Inc., No. 07-35800 (9th Cir. June 25, 2009), where the court restricts section 230 immunity ONLY to content providers, not employers who give their employees Internet access:

Zango relies on legislative history to show that Congress intended to grant immunity only to content providers.
In particular, Zango points to the House Conference Report’s statement that “[o]ne of the specific purposes of [§ 230] is to overrule
Stratton-Oakmont v. Prodigy and any other similar decisions which have treated [Internet service] providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material.”

IANAL:  I am not a lawyer and this is not legal advice.  If you want legal advice, consult an attorney, not my web pages!


Note: The opinions expressed on these pages are the sole opinion of Donald K. Burleson and do not reflect the opinions of Burleson Enterprises Inc. or any of its subsidiaries.

Suggestions?  We are always seeking new tips for the professional at leisure, and any suggestions would be most welcome.  If you find an error or have a suggestion for improving our content, we would appreciate your feedback. 

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