copyright © 2008 by john wiley & sons, inc. all rights reserved chapter 4 common law, negligent...

Copyright © 2008 by John Wiley Copyright © 2008 by John Wiley & Sons, Inc. All rights reserved& Sons, Inc. All rights reserved

CHAPTER 4CHAPTER 4

Common Law, Negligent Common Law, Negligent Hiring, and Employee RightsHiring, and Employee Rights


INTRODUCTIONINTRODUCTION

Scrutinize employee applications, and do not hire on the Scrutinize employee applications, and do not hire on the spot. Make them come in for a second interview, which spot. Make them come in for a second interview, which creates an aura of privilege to work there – as it should creates an aura of privilege to work there – as it should be. Check references. Ask for written references if be. Check references. Ask for written references if possible.possible.

- Maren L. Hickton, Maren Incorporated, Pittsburgh, PA- Maren L. Hickton, Maren Incorporated, Pittsburgh, PA


TALES FROM THE FIELDTALES FROM THE FIELDDelivery driver protects his turf…Delivery driver protects his turf…

Should the driver have been terminated?Should the driver have been terminated? Had someone been shot, what is the Had someone been shot, what is the

restaurant’s liability?restaurant’s liability? How should the restaurant protect its How should the restaurant protect its

employees from violent events?employees from violent events? What kind of background checks should be What kind of background checks should be

conducted on delivery drivers?conducted on delivery drivers?


CHAPTER OVERVIEWCHAPTER OVERVIEW

Importance of pre-screening job applicantsImportance of pre-screening job applicants Negligence, liability, and reasonable careNegligence, liability, and reasonable care Common law and the employee Common law and the employee

relationshiprelationship At-will employmentAt-will employment Employee rights in the workplaceEmployee rights in the workplace Grounds for employee-initiated lawsuitsGrounds for employee-initiated lawsuits


PRE-SCREENING APPLICANTSPRE-SCREENING APPLICANTS

Background checks and Background checks and drug screens are common in drug screens are common in large chain operationslarge chain operations

Due to high costs, smaller Due to high costs, smaller operations do not often pre-operations do not often pre-screen job applicantsscreen job applicants


MULTI-MILLION DOLLAR MULTI-MILLION DOLLAR LAWSUITSLAWSUITS

Hotels and restaurants Hotels and restaurants have lost major lawsuits have lost major lawsuits as a result of the criminal as a result of the criminal and negligent acts of and negligent acts of their employeestheir employees

Costs of background Costs of background checks is minimal checks is minimal compared to a major compared to a major lawsuitlawsuit


NEGLIGENCENEGLIGENCE

Negligence is doing (or not doing) what a Negligence is doing (or not doing) what a sane, reasonable person would (or would sane, reasonable person would (or would not) do under like or similar circumstancesnot) do under like or similar circumstances

Hospitality operations can be held liable Hospitality operations can be held liable for the negligent acts of its employeesfor the negligent acts of its employees


REASONABLE CAREREASONABLE CARE

Restaurants and hotels must provide Restaurants and hotels must provide reasonable care to protect their guests reasonable care to protect their guests from harm or injuryfrom harm or injury

Each case is different, and what is Each case is different, and what is reasonablereasonable is often left up to the courts to is often left up to the courts to decidedecide


FORESEEABLEFORESEEABLE

Establishments need Establishments need only protect against only protect against occurrences which occurrences which are foreseeableare foreseeable

A recently mopped restaurant floor could “foreseeably” cause a guest to slipand fall, so the restaurant provides reasonable care by placing the “wet floor” sign in the area as a warning to guests to be cautious


COMMON LAW AND COMMON LAW AND NEGLIGENCENEGLIGENCE

Hotels and restaurants have a Hotels and restaurants have a common common lawlaw duty to protect their guests from harm duty to protect their guests from harm or injuryor injury

Hotels and restaurants must also exercise Hotels and restaurants must also exercise reasonable care in the practice of reasonable care in the practice of supervising the activities of their supervising the activities of their employeesemployees


AT-WILL EMPLOYMENTAT-WILL EMPLOYMENT

In at-will employment In at-will employment states, employees states, employees can be terminated at can be terminated at any time and for any any time and for any reasonreason

Exceptions may Exceptions may include where a union include where a union contract is in forcecontract is in force


ILLEGAL DISCRIMINATION NOT ILLEGAL DISCRIMINATION NOT ALLOWEDALLOWED

Numerous state and federal laws coverNumerous state and federal laws cover

employee/employer relationships, so even inemployee/employer relationships, so even in

an at-will employment state, management an at-will employment state, management

should have a justifiable, valid, and non-should have a justifiable, valid, and non-

discriminatory business reason for anydiscriminatory business reason for any

employee dischargeemployee discharge


EMPLOYEE RIGHTSEMPLOYEE RIGHTSMany potential legal pitfalls can occur as a result of management’s failureto exercise reasonable care in employee relations…

WRONGFUL D

ISCHARGE

C

ONSTRUCTIVE DISCHARGE

ASSAULT AND BATTERY

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

FALSE IMPRISONMENT

DEFAMATION BY LIBEL

DEFAMATION BY SLANDER

INVASION OF PRIVACY

NEGLIGENT HIRING

NEGLIGENT RETENTION


IDENTIFY THE CIRCUMSTANCES THAT MAY PROVIDE IDENTIFY THE CIRCUMSTANCES THAT MAY PROVIDE AN EMPLOYEE WITH THE GROUNDS FOR FILING A AN EMPLOYEE WITH THE GROUNDS FOR FILING A

LAWSUIT BASED ON EACH OF THE FOLLOWINGLAWSUIT BASED ON EACH OF THE FOLLOWING

Wrongful dischargeWrongful discharge Constructive Constructive

dischargedischarge Assault and batteryAssault and battery Infliction of emotional Infliction of emotional

distressdistress False imprisonmentFalse imprisonment

Libel and slanderLibel and slander Invasion of privacyInvasion of privacy Negligent hiringNegligent hiring Negligent retentionNegligent retention


SUMMARYSUMMARY

Importance of pre-screening job applicantsImportance of pre-screening job applicants Negligence, liability, and reasonable careNegligence, liability, and reasonable care Common law and the employee Common law and the employee

relationshiprelationship At-will employmentAt-will employment Employee rights in the workplaceEmployee rights in the workplace Grounds for employee-initiated lawsuitsGrounds for employee-initiated lawsuits

copyright © 2008 by john wiley & sons, inc. all rights reserved chapter 4 common law, negligent...

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