A recent news story I saw about road rage involving a company vehicle served as a good reminder that employers cannot control every decision an employee makes. A worker may lose their temper, confront a customer, misuse a company vehicle, or engage in conduct the employer never authorized.
Unfortunately, just saying the employee “went rogue” does not necessarily remove the business from the resulting claim.
California courts have addressed this issue for decades. In the 1947 case Fields v. Sanders, an oil-company truck driver became involved in a roadside dispute while making a delivery and assaulted another motorist. Although the employer didn’t authorize the assault, the court found the employer could still be liable because the dispute arose from the employee’s work-related driving.
Every situation is different, but the lesson remains relevant: when employee misconduct is connected to work, the employer’s own practices may also come under scrutiny.
What Will Be Examined?
After an incident, investigators and attorneys may ask:
- Was the employee properly screened?
- Were warning signs or prior complaints ignored?
- Did the employee receive appropriate training?
- Were conduct and safety policies clearly communicated?
- Did management enforce those policies consistently?
- Was the employee qualified to operate the vehicle or equipment involved?
No employer can prevent every bad decision. However, companies can reduce risk by showing they took reasonable steps before an incident occurred.
Establish Clear Rules
Employees should understand that company standards apply whenever they are representing the business, including while driving, working at customer locations, wearing a company uniform, or using company equipment.
Written policies should prohibit threatening behavior, physical confrontations, harassment, road rage, retaliation, and unauthorized weapons. Employees should also be instructed to disengage from confrontations and contact management or law enforcement rather than trying to resolve the situation themselves.
Screen Employees Appropriately
Screening should reflect the employee’s responsibilities and comply with applicable employment laws.
For employees who drive, this may include reviewing motor vehicle records, confirming valid licensing, and applying written driver-eligibility standards. Driving records should also be reviewed periodically, not only at the time of hire. An excellent low cost program for ongoing monitoring of employee driving records is the DMV’s Employer Pull Notice program.
Additional screening may be appropriate for employees who enter customer homes, handle keys, work with security systems, or have access to confidential information or valuable property.
Train and Document
A policy in an employee handbook is useful, but training makes it far more effective.
Employees should know how to respond to realistic situations, including:
- Angry customers
- Traffic confrontations
- Threats or accusations
- Jobsite disputes
- Requests to perform unsafe work
- Suspected criminal activity
Keep records showing when training occurred, what was covered, and which employees attended.
Have a Track Record of Addressing Warning Signs
Aggressive behavior, unsafe driving, customer complaints, threats, or repeated policy violations should be investigated and documented.
Allowing known problems to continue without corrective action can make it harder for an employer to show that it acted reasonably.
Have an Incident-Response Plan
Employees should immediately report accidents, altercations, police involvement, threats, and serious customer complaints.
After an incident, management should:
- Protect anyone in immediate danger.
- Preserve video, photographs, vehicle data, messages, and other evidence.
- Obtain factual accounts from employees and witnesses.
- Avoid admissions or promises of payment.
- Notify the company’s insurance broker and legal counsel when appropriate.
Depending on the circumstances, more than one insurance policy may need to be placed on notice.
An employer cannot guarantee that every employee will exercise good judgment. It can, however, establish clear expectations, screen and train employees appropriately, respond to warning signs, and document the steps it has taken.
Those practices may help prevent an incident. They will also help place the business in a stronger position if an employee unexpectedly acts outside the rules.
For assistance reviewing your Commercial Auto, General Liability, Employment Practices Liability, or other business insurance coverage might respond to an unexpected scenario, contact Eclipse Marketing & Insurance Services at 800-530-4448 or info@eclipseinsurance.com. We help our customers be prepared!
About the Author
Larry St. John is a 20+ year veteran of insurance and risk management for the construction and electronic security industries.
He can be reached at LStJohn@eclipseinsurance.com
