In many cases, clients wonder whether or not their boss or company can be held liable for the transgressions of the co-worker or supervisor who harmed them. Under the theory of respondeat superior, in order to establish vicarious liability between an employer and the actions of their worker, the plaintiff has to prove that there was (1)  an employer-employee relationship and (2) the employee was working within the line and scope of her employment when the harm occurred.

First, under Alabama precedent, an employer-employee relationship exists when the employer has reserved the “right to control” the employee. If the reserved control only extends to that which is ultimately to be accomplished, an employer-employee relationship is not present.  If the employer fails to reserve the requisite right to control, then no employer-employee relationship exists, and, rather, the worker is likely an independent contractor. Factors that may be considered in making this determination between whether a worker is an employee or independent contractor include: the method by which the worker is paid, ownership of the equipment used, and whether the employer has the right to terminate the worker’s employment.

Next, if an employer-employee relationship exists, then the court will determine whether the employee was working within the line and scope of his employment. In Alabama, when an employee, abandons his employer’s business for personal reasons the employer is not liable for the actions of the employee during the temporary lapse in employment. Therefore, a tort committed by an employee, cannot be attributed to the employer if it was fueled by “personal motives.”  However, in cases where the deviation from the scope of employment is slight and not unusual, then it may be left up to the jury to determine whether the evidence goes to show that the employee was acting from personal motives or in furtherance of his employment.

In the context of federal employment law cases, the standard for liability has been modified in the 11th Circuit by two cases: Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. These cases established a defense for the employer. If an employer can show that (1) the employer exercised reasonable care to prevent or correct the behavior, and (2) the claimant employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer, then the employer will not be held vicariously liable. Before the decisions in these cases, the 11th Circuit was much more reluctant to impose liability on employers for the transgressions of their employees.

Therefore, determining whether or not your employer can be held vicariously liable for the actionable harm caused by a co-worker or supervisor must be evaluated on a case by case basis. Our Birmingham, Alabama employment law firm has handled a number of cases throughout the State of Alabama. If you are concerned about whether you may have suffered actionable harm at work please contact us at (205) 588-0699 for a free consultation to discuss your potential case.


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