It’s holiday time and that means that the good cheer at office parties may cause business owners and supervisors to worry if they can be liable for their employees’ off-duty conduct. For example, employers want to know if they have any responsibility when a intoxicated employee leaves the Christmas party and then goes home and assaults his wife.
The Texas Supreme Court first tackled liability for off-duty employee conduct in 2006 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.
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 impaired employee, when the officer tried to intervene in the employee’s after-hours domestic dispute.
TEXAS SUPREME COURT OPINION IN LORAM MAINTENANCE
In the Loram Maintenance case, 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 actually 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 for compensation from the company that employed his assailant.
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. So even the employee was out of town on company business, and the incident happened at lodging provided by the company, and the employee was high (with the acquiescence and possible encouragement of his supervisor), and Tingle had been threatening violence that very day, the employer wasn’t liable. Tingle wasn’t on duty or otherwise under the employer’s control at the time of the shooting, so the company won.
Therefore, current Texas law is that employers owe the public no duty to act to control the conduct of an off-duty employee. That is good news for employers in Texas who don’t want to be saddled with babysitting their employees’ behavior after work. There are attempts to chip away at this legal standard in Texas (i.e., the large verdict that a jury in Dallas awarded this summer against an employer for an off-duty crime), but no cases have overturned this Texas Supreme Court precedent to date.
EXCEPTION WHEN TAKING CONTROL OF IMPAIRED EMPLOYEES
But there is an exception created by the Texas Supreme Court that is important for employers to understand, particularly when company holiday parties are involved. “We have recognized a limited exception to this rule when an employer exercises control over the injury-causing conduct of its employee, imposing a duty, for example, when an employer sent an obviously intoxicated employee to drive home.” Nabors Drilling, U.S.A, Inc. v. Escoto (Tex. 2009).
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 and whether it involves an incapacitated employee.
The Texas Supreme Court outlined that duty in Nabors Drilling:
When, because of an employee’s incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others.NABORS DRILLING (tEX. 2009)
So does that mean that you should not take any control of the situation when you know an employee has imbibed too much at your party? Of course not. If you know or suspect that your employee is impaired at work or a business function, take reasonable steps to get him home without hurting anyone: Cut off the liquor. Take his keys away. Don’t let him harass or assault other partygoers. Quickly get him a ride home with someone you are sure is sober and capable of handling the drunk, or call an Uber for the impaired employee. Or you could avoid the situation altogether by limiting the alcohol provided at the party, by using trained bartenders who won’t overserve, or by giving out limited drink tickets, for example.
One of the only Texas Supreme Court opinions in which an employer has been held liable in Texas for a drunk employee hurting someone after work was when the employer knew the employee was intoxicated and sent the employee home from work by allowing him to drive his own car. That small amount of control by the employer just made matters worse and created liability for the employer.
Be wise about not allowing a drunk or high employee out onto the road. But other than that, don’t worry too much about your liability for your employee’s off-duty conduct. Of course, on-duty conduct is treated much differently in the law than off-duty conduct. And consider your employees on duty while they are attending the party that you are hosting. Make sure they act responsibly during any company event.
Texas employers can be held liable for an employee’s negligence as long as the negligent act occurred when the employee was performing his or her duties for the employer. There could be an reasonable argument about whether or not the employee was on duty during a company social event. But during regular work assignments, there is no doubt that you as the employer can be liable for the bad acts of your employees. So as an employer, spend your energy being vigilant about your employees’ safety and conduct while they are actually on the job .