Q: I have been at this job for more than three years. There is a guy who makes remarks that clearly are inappropriate. He has been reported to human resources, but management has not taken steps to get him to conduct himself in an acceptable manner, at least as far as any of us can tell. If claims are brought by someone who works here about him, is he liable only or also the company?
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E.P., Cerritos
A: If the comments this guy makes are such that they rise to the level of harassment or other actionable tort (thus unreasonable conduct), the employee can be liable and the employer as well, although there are differences in applicability to each.
California Government Code Section 12940(j) proscribes aiding or abetting unlawful workplace behavior. Thus, if management there knew, or reasonably should have known, about the harassment and neglected to take immediate and appropriate corrective action, then the company may be found liable as well. If the person you are referencing is a supervisor, however, then his harassment could pose a liability problem for the company even if management did not have prior knowledge.
I am guessing you, or one or more others have notified H.R. about this fellow, but following up would be prudent as well.
Q: My employer is getting sued. I think the people here are good, and this is a very nice working environment. The complaint is negligent supervision, which supposedly led to a guy getting hurt. What does that actually mean, “negligent supervision”?
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L.K, Santa Monica
A: The theory of negligent supervision comes into play when the employer can be said to have failed to reasonably oversee someone over whom the employer has authority, and that failure was a contributing factor in someone getting hurt or harmed. A basic example is the company knows a particular machine operator is careless about following certain rules, behaves in a manner that creates risk for others, and indeed someone is then injured. Lack of sufficient training by the employer can be a factor in a negligent supervision claims.
Questions that come to mind here: What exactly occurred? What is it that places potential blame on the employer — what did the employer do or not do that shows a lack of care in bringing that employee along, or allowing that employee to continue to act in his or her job?
Note that some employers have liability insurance that might come into play in this instance, which is referred to as “employment practices coverage.”
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
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