Off-Duty Conduct of Employees

            I frequently teach seminars for employers and supervisors who want to learn how to manage their employees in a way that avoids any trips to the courthouse.

            One of the most frequent questions I get during while I’m conducting training concerns an employer’s responsibility for accidents or incidents that employees cause while off duty. For example, employers want to know if they have any responsibility when a drunk employee sideswipes a van full of kids after leaving work.

            The Texas Supreme Court tackled this issue recently in the case of Loram Maintenance of Way, Inc. v. Ianni. The Court was asked to decide whether an employer owes a duty to protect the public from an employee’s wrongful off-duty conduct because the employer knew its employee was drug-impaired and had threatened violence to others.

Employer Not Liable

            The Texas Supreme Court found that the employer owed no such duty and therefore wasn’t liable for injuries to the El Paso police officer who was shot by Tingle, the drug addict/employee, when the cop tried to intervene in the employee’s after hours domestic dispute.

            So the Court’s opinion means that current Texas law is that employers owe the public no duty to act to control the conduct of an impaired off-duty employee. That is good news for employers in Texas who don’t want to be saddled with babysitting their employees after work. But there is an important caution for employers to understand and to do that you have to understand the specifics of the case the Court was reviewing on appeal.

            This case that the Texas Supreme Court reviewed involved an employer who put its employees on the road, working 12-hour shifts and traveling with their families, staying at motels paid for by the employer. There was evidence that the supervisor and co-workers used methamphetamine along with Tingle and that the supervisor had given Tingle time off to purchase more.

            The employer had received reports prior to the incident that Tingle was seen using the drug at work and had threatened one of his wife’s friends with a knife. The day of the incident, while at work, Tingle spoke of attacking his wife. After his shift ended and Tingle had returned to the motel, Tingle began to argue with his wife and threatened her with a gun in a parking lot.

            That is when the El Paso police officer intervened and was shot.  He was seriously injured and looked to the company that employed his assailant for compensation.

            But the court pointed out in its opinion that the shooting incident didn’t occur until at least one hour after Tingle was already off duty and that there was no evidence that the employer was exercising any control over Tingle at that time.

            That is the key to whether you as an employer will have any liability: whether you are taking any control at the time of the incident. Mere knowledge of an impaired condition is not sufficient to impose a duty on the employer.

Don’t Try to Control Off-Duty Employees

            What can get you into trouble is any effort on your part to control the employee after hours. An employer has been held liable in Texas when the employer knew the employee was intoxicated and sent him home from work by suggesting the intoxicated employee drive his own car home. That small amount of control by the employer just made matters worse.

            If the employer decides to take control of an impaired employee, the employer must act responsibly, and not exercise negligent control. Here’s how to do that:

·         If you suspect an employee is under the influence of alcohol or drugs at work, don’t let the employee drive, operate heavy equipment, or work at all that day. Have a sober manager take the employee to be drug tested if your policies allow, then have the manager drive the employee home and tell him not to return to work until he is sober.

·         If you don’t have a drug and alcohol policy that allows testing, get one and make sure you don’t have a drug culture in your own workplace by conducting random testing and using appropriate discipline for those who violate your substance abuse policies.

·         Don’t serve alcohol at company picnics, Christmas parties or softball games. If you do serve it and one of your employees does become intoxicated, make sure he gets home safely with someone else driving.

·         If you are aware that an employee is violent, put your efforts into protecting your other employees, not the whole world. Make sure your workplace is secure and that the employee is disciplined for any threats of violence involving co-workers, but don’t try to protect others that may encounter him after work, because you will probably fail to adequately warn everyone that needs warning.

·         Don’t try to take control of employee’s other off-duty conduct. Many employers want to stop their employees from ever smoking, make them lose weight, require them to exercise, regulate their drinking, etc. This is a slippery slope. If you think you want to interfere in their off-duty privacy, understand that you may be taking on legal liability also. Don’t you have enough to do just trying to control the workplace during office hours?

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