Category Archives: Joint Employer Liability

Employer May Be Held Liable For Employing Murderer!

Contributed by Noah A. Frank, July 27, 2017

Claims of negligent hiring, training, and retention is alive and well. Employers must be prepared to investigate, and fully remediate supervisors’ misconduct.

code of conduct

Recently, the Seventh Circuit Court of Appeals (Illinois, Wisconsin, Indiana) held that an employer may be liable for intentional acts committed by supervisory employees against other employees outside of work if the employer has been negligent. The tragic case, Anicich v. Home Depot USA, Inc., 852 F. 3d 643 (7th Cir. 2017), arose from the death and rape of a pregnant employee at the hands of her supervisor.

Background

Home Depot and its garden centers subcontractors (together, the “Employer”) jointly employed Brian Cooper as a regional manager. The victim’s estate alleged the employer knew Cooper had a history of sexually harassing, verbally abusing, and physically intimidating female subordinates, which included making crude and lewd comments, yelling and swearing at them, rubbing against them, controlling their conduct by pressuring them into spending time with him alone, and even throwing things.

The supervisor’s mistreatment of one subordinate, Alisha Bromfield, began in 2006 when she started working for the employer seasonally as a teenager. Cooper fixated his attention on her, calling her his “girlfriend” at work and repeating the above misconduct with her. Senior management, aware of Bromfield’s repeated complaints, failed to take reasonable steps to protect Bromfield, ensure that Cooper completed mandated anger management training or remove his supervisory duties. This ended in tragedy.

In 2012, when Bromfield was 7 months pregnant, Cooper threatened her. Using his supervisory authority, he demanded that she attend an out-of-town wedding with him, telling her he would fire her or reduce her hours if she refused. Bromfield acquiesced, but denied Cooper’s recurring demand to “be in a relationship.” After the wedding, Cooper murdered Bromfield, and then raped her corpse.

The Court held that employers have a duty to act reasonably in hiring, supervising, and retaining their employees, and that this was part of a broader trend toward recognizing employer liability for supervisors’ intentional torts committed outside the scope of employment – even where the harm caused was wholly disproportionate to more predictable harms (e.g., murder/rape versus continued sexual harassment, emotional/mental trauma). Because Cooper was alleged to have abused the employer’s grant of supervisory authority over Bromfield, the employer could be vicariously liable for Cooper’s torts committed against Bromfield.

Employers’ Duty in Light of the Seventh Circuit Court Ruling

Anicich is instructive. Employers that fail to act to stop an employee’s abuse of supervisory authority could be held liable for even the most extreme and gruesome intentional tortious and criminal conduct.

As such, employers must protect their businesses, including the following minimum steps:

  • Understand the risks associated with subcontracting and joint employer relationships, including supervision and control;
  • Implement and train employees on anti-discrimination, harassment, and sexual harassment policies, including a published complaint/reporting procedure, and prohibiting retaliation;
  • Take seriously and investigate all reports and complaints – no matter how minor, and even for repeat complainants;
  • Remediate any issues – including stripping supervisory authority, mandating training, and transferring/terminating employees;
  • Prohibit and protect those involved from, retaliation;
  • Respect and comply with collective bargaining rights – and get the union’s buy-in when necessary; and
  • Seek the advice of and guidance from experienced employment counsel when issues arise to ensure legal compliance and implementation of best practices to mitigate exposure.

No Joint Employer Liability Found, Despite New NLRB Standard

Contributed by Beverly Alfon

A couple of months ago, we discussed the National Labor Relations Board’s (NLRB) startling decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), in which it determined that a non-union company shared joint employer liability, under the National Labor Relations Act (NLRA), with a labor contractor at one of its recycling plants. The Board held that two or more entities are joint employers if each one possesses sufficient control over employee’s essential terms and conditions of employment. Employers were in an uproar over the decision because of the potential exposure it brings to the use of any subcontractor and the fact that it makes it more difficult for an employer to avoid union organization through the subcontracting of work.

In the first reported decision since Browning-Ferris, the Regional Director for NLRB Region 5 found that in Green JobWorks, LLC/ACECO, LLC, Case No. 05-RC-154596 (Oct. 21, 2015), the union failed to establish a joint employer relationship between a subcontractor and a staffing agency. So, what made the difference in this case? See the chart below. (Click here if chart does not appear) 

BAChart (2)

BOTTOM LINE:  Unlike the Browning-Ferris decision, the Regional Director’s decision in Green JobWorks, LLC is not binding in other cases and the union has a right to appeal it (and we’ll keep you posted). Nonetheless, the decision confirms that the specific terms of the parties’ agreement and their conduct under those terms will be scrutinized.  As we suggested before, now is the time to take action:

  • Analyze all written agreements between your organization and any third party. A user company’s reservation of rights as to contracted employees should be limited and specific. The agreement should clearly indicate that the servicing company maintains exclusive authority to hire, fire, discipline, etc. and the user company reserves no/minimal rights to influence or decide these matters.
  • Carefully evaluate supervisory functions and oversight in practice, training requirements and other day-to-day activities surrounding employee relations (of your own direct employees and 3rd party employees). Consider requiring on-site “lead workers” from the servicing company so that they are responsible for tracking contracted employee hours, determining breaks and removing poor performers. 
  • Determine whether your current business model needs to be tweaked or modified in light of these developments.