Fall 2009

All We Do Is WorkSM FFLORIDALORIDAEEMPLOYERMPLOYER

A BULLETIN ON EMPLOYMENT, LABOR, BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP

Negligent Hiring or Retention. Negligent INSIDE THIS ISSUE: hiring or retention occurs when, during the hiring “Employer” Misconduct 3 of an employee or during the course of employment, New Law Extends Health the employer learns or should have learned of prob- Insurance Coverage to and Workplace lems with an employee’s fitness but fails to take College Students on Medical action, such as investigation, discharge or reassign- Leave from their Studies Intentional Torts ment. An employer may be held directly liable Miami Lawyers Join ach year an estimated 1.7 million employees for its own acts or omissions, or those committed Jackson Lewis LLP by supervisors or other management employees. Eon average are the victims of violent crimes 4 committed in the workplace.1 Non-fatal workplace The ultimate question of liability is whether it was Jackson Lewis Opens assaults result in over 900,000 lost work days annu- reasonable for the employer to permit the employee 42nd Office ally.2 Despite employers’ claims of workers’ com- to perform his job in light of the information the Sign Up for Online pensation immunity, such acts of violence are the employer knew or should have known about the Workplace Law News basis for successful suits against employers under employee (such as a criminal background or a histo- various tort theories, including negligent hiring or ry of violence or sexual harassment). Negligent retention, assault, battery and false imprisonment.3 hiring or retention claims usually are brought in Employers have been held directly and vicariously conjunction with another tort claim, such as assault liable for acts of violence committed by or against or battery. their employees and third parties. Victims can Assault and Battery. Assault and battery are recover compensatory and punitive damages directly separate legal claims, but are often brought together. from the employer. Assault occurs when a threat of physical contact An employer is directly liable when the employer is made; battery is the resulting physical contact. knew or should have known of the tortious (wrong- In the employment context, for example, a sexual ful) conduct or propensities for the tortious conduct, harassment claim where physical touching is alleged but failed to take immediate and appropriate pre- is often coupled with claims for assault and battery. ventive or corrective action. Under direct liability, An employer may be held directly liable if it was the employer would be held liable for its own negligent in hiring or retaining the offender. conduct, negligence or recklessness, and not that Moreover, an employer may be held vicariously of an ordinary employee or low-level supervisor. liable if an assault committed outside the scope of employment nevertheless furthers the employment An employer is vicariously liable — legally respon- relationship. sible for an employee’s tortious conduct — when an employee causes harm while acting within the scope In Tallahassee Furniture Co. v. Harrison,4 a customer of his employment and furthers the interests of the gave a furniture delivery employee a gift of a televi- employer. Commonly, the tortious conduct arises sion when he made a delivery to her home. He later out of a work-related dispute or altercation, or an returned, saying he needed a receipt so his employer incident occurring as a result of an employee exercis- would not think he had stolen the television. The ing or performing his job duties. Vicarious liability employee then brutally attacked the customer. He is generally found when the conduct: had an extensive criminal and psychiatric history, but the employer had not conducted a background (1) is the kind the employee was employed to check or even had him fill out a job application perform; (which requested background information) prior to hiring him. The employer was held liable of "The hiring of a lawyer is an (2) occurs within the time and space limits of important decision that should employment; and negligent hiring. The Florida court ruled that the not be based solely upon employer should have made itself aware of the advertisements. (3) is activated, at least in part, by a purpose to Before you decide, ask us to employee’s criminal background and known that he send you free written information serve the employer. about our qualifications and Continued on next page experience." Rule 4-7.3, Rules Regulating the Florida Bar.

1 ADVERTISEMENT www.jacksonlewis.com should not deal directly with customers, especially False Imprisonment. False imprisonment is FLORIDAEMPLOYER in their homes. the unlawful restraint of a person against his or her Generally, an employer does not have to conduct will. Claims for false imprisonment can be brought EDITOR-IN-CHIEF: by employees or customers and occur frequently in Lillian Chaves Moon, Esq. a background investigation into each applicant. However, where the employer is responsible for situations of suspected shoplifting or employee 407-246-8452 theft. [email protected] bringing the employee into contact with customers Lillian Chaves Moon is an associate in and it receives some benefit from that contact (such In Stockett v. Tolin,6 the employer was held directly the Orlando, Florida office of Jackson as having its furniture delivered), the employer has liable for the acts of its managing agent, one of the Lewis LLP. Ms. Moon earned a Bachelor of Arts degree in 1995 and a reasonable duty to inquire into the employee’s company’s owners, who pinned an employee against her Juris Doctor degree in 2000 from background to determine whether he is fit to act the wall with his body on at least one occasion and Brigham Young University in Provo, in the capacity for which he is being hired.5 Thus, held her confined in her chair on two occasions. Utah. The majority of her practice is devoted to employment litigation, the employer in Tallahassee Furniture Co. was held Each time, the agent refused to allow the employee defending employers in federal and directly liable for its omission. to escape. The employer was found directly liable state courts, as well as before the because the acts were committed by its managing EEOC and other administrative agen- Usually, a party has no legal duty to prevent the cies. She also provides clients with misconduct of third parties. However, an exception agent and, therefore, were misconduct of the corpo- day-to-day advice and counseling ration itself. regarding employer policies and vari- exists where there is a special relationship that gives ous workplace law issues as they rise to a duty to control the conduct of third parties * * * arise. In addition, prior to practicing so as to prevent them from harming others. In an in Florida, Ms. Moon served as an employment relationship, an employer’s duty is As the above cases demonstrate, liability traps await appellate attorney for the United employers who fail to take the necessary steps to States Department of Labor in limited to acts committed by employees with its Washington, D.C., representing the property or upon its premises. Florida courts have create and promote a safe environment for their Secretary of Labor in federal appel- refused to broaden this duty to areas or relationships employees and third parties. In certain instances, late courts in cases brought pursuant workplace violence also may violate the to the Occupational Safety and involving employees outside of the work setting Health Act. Ms. Moon is a member because the burden on employers would be too Occupational Safety and Health Act and result in of the Florida Bar, and the U.S. OSHA citations and penalties. Although intentional Supreme Court Bar. great. Therefore, employers do not owe a duty to persons who are injured by their employees while torts in the workplace are not predictable, they can the employees are off duty, not then acting for the be prevented through implementation and enforce- employer’s benefit, not on the employer’s premises, ment of effective workplace policies and employee and not using the employer’s equipment. training. Employers should take the first step before such acts occur by reviewing and, if necessary, revis- ing their workplace violence policies and hiring practices. They also should train their employees regarding these policies, and the consequences of noncompliance, in order to help prevent such unwanted conduct.

This update is provided for informa- NOTES: tional purposes only. It is not intended 1 Bureau of Justice Statistics, U.S. Department of Justice, Violence in the Workplace 1993-1999 (2001). as legal advice nor does it create an attorney/client relationship between 2 Bureau of Labor Statistics, U.S. Department of Labor, Survey of Occupational Injury and Illness (2002). Jackson Lewis LLP and any readers or 3 recipients. Readers should consult Generally, Florida’s workers’ compensation laws provide compensation and benefits to covered employees when they are injured on the job, providing counsel of their own choosing to dis- employees with an exclusive remedy for their injuries. However, when an employer is found to have committed an intentional tort against its employ- cuss how these matters relate to their ees, an exception to the employer’s workers’ compensation immunity applies and the employer can be held liable in tort. In addition, workers’ com- individual circumstances. Reproduction pensation exclusivity provisions do not bar tort claims made by non-employees, such as contractors, customers, or vendors. See Bakerman v. Bombay Co., in whole or in part is prohibited with- Inc., 961 So.2d 259, 261-62 (Fla. 2007). out the express written consent of 4 583 So. 2d 744 (Fla. 1st DCA 1991). Jackson Lewis LLP. 5 Notably, when an employer performs a pre-hire background investigation in compliance with Florida Statutes §768.096, the employer is presumed This update may be considered attor- not to have been negligent in hiring the individual. The background investigation must comply with the various specific statutory requirements, and ney advertising in some states. must not have revealed any information which reasonably demonstrated the then-potential employee’s non-suitability for the work to be performed. Furthermore, prior results do not An employer who performs such compliant background investigations can avail itself of the statutory presumption against intentional tort claims that guarantee a similar outcome. base liability on negligent hiring and retention of the employee tortfeasor. Jackson Lewis LLP represents man- 6 791 F. Supp. 1536 (S.D. Fla. 1992). agement exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to repre- sent employers in matters before state and federal courts and adminis- trative agencies. For more informa- tion, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work. © 2009, Jackson Lewis LLP

2 www.jacksonlewis.com insurance plan as a dependent while she was New Law Extends enrolled full-time in college. As with many employer-provided group health plans, this one permitted participation of a dependent child over Health Insurance the age of 18 if the child is enrolled at an institution of higher education on a full-time basis. Michelle Coverage to College thus found it necessary to remain a full-time college student while undergoing intensive chemotherapy, Students on Medical because if she left school on a medical leave, her parents’ insurance coverage would have ended. She Leave from their died on November 10, 2005. To qualify for protection under Michelle’s Law, Studies the dependent’s medical leave of absence must: new federal health insurance law, “Michelle’s • Be medically necessary; ALaw,” amends ERISA (Employee Retirement • Commence while the student is suffering from a Income Security Act of 1974) to extend eligibility serious illness or injury; for group health benefit plan coverage to dependent college students in certain cases. Michelle’s Law • Cause the student to lose coverage under the plan; provides that a group health plan may not terminate and a dependent college student's health coverage • Be documented by a certification from a health because he or she takes a medically-necessary leave care provider. of absence from school that causes the dependent to fall out of full-time student status. Michelle’s Under the law, a dependent’s existing group health Law is effective for plan years beginning on or after insurance coverage cannot be terminated prior to the October 9, 2009 (or January 1, 2010, for calendar earlier of one year after the first day of the leave or year plans). the date coverage would otherwise terminate under the terms of the plan. The student on leave is enti- The law is named after the late Michelle Morse, a tled to the same benefits as if he or she had not student at Plymouth State University in Plymouth, taken a leave at all. For more information regarding New Hampshire, who was diagnosed with cancer at this new law, please contact your Jackson Lewis age 20. She was covered under her parents’ health attorney or Angel Castillo, Jr. in our Miami office.

Employment Law Sections of both the Florida Bar Miami Lawyers Join and American Bar Associations. Mr. Sukhdeo also is an active member of the Black Lawyer’s Association Jackson Lewis LLP and the Caribbean Lawyer’s Association. Mr. Woodard represents employers of all sizes in a he Miami office announces that Devand (Dave) broad cross section of industries, including logistics, TA. Sukhdeo has joined the firm as a Partner hospitality, finance, retail and restaurants. Mr. and TerRance Q. Woodard has joined as an Woodard regularly handles simple, complex, and Associate. Mr. Sukhdeo is formerly a partner with multi-party litigation and has both federal and state Ogletree Deakins. He represents employers ranging court litigation experience in the areas of unfair from small business to international corporations in competition, employment discrimination, wage virtually every industry sector and is an accom- and hour and employee leaves. plished practitioner in the full range of employ- ment, labor and benefits matters. Mr. Woodard received his undergraduate degree from Boston College and a J.D. from Columbia Prior to his tenure with Ogletree Deakins, Mr. University School of Law, where he was a Nelson Sukhdeo was a founding shareholder in Littler Mandela Scholarship recipient and the managing Mendelson’s Miami office, as well as a shareholder at editor of the National Black Law Journal. In Akerman Senterfitt. He received a B.A. from addition, Mr. Woodard is President of the Board Columbia University and a J.D. from New York of Directors of the Tim Hardaway Foundation in University School of Law, where he served as the Miami, a non-profit organization that addresses associate editor for the Journal of Law and Social the health, educational and socio-economic needs Change. He has published numerous articles on of ethnically diverse, urban communities. various workplace law topics and frequently lectures before business and professional associations across Mr. Sukhdeo and Mr. Woodard may be reached at the country. He is a member of the Labor and (305) 577-7600. 3 www.jacksonlewis.com FLORIDAEMPLOYER Jackson Lewis Opens 42nd Office JACKSON LEWIS We are pleased to announce we have opened the Prior to joining the firm, Mr. Carroll was a partner FLORIDA OFFICES doors in our new Cincinnati, Ohio office! With this at Vorys, Sater, Seymour and Pease. Ms. Weber JACKSONVILLE OFFICE new addition – and our 42nd office – we continue joins us from the firm of Cors and Bassett, where 245 Riverside Avenue our expansion in the Midwest Region and through- she has been a partner for many years. Jacksonville, FL 32202 out the United States. 904-638-2655 Mr. Carroll and Ms. Weber will work closely with Scott Carroll and Katharine Weber, both workplace Jim Stone and the attorneys in our Cleveland office, MIAMI OFFICE One Biscayne Tower law practitioners, join the firm as Partners, with as well as with our other Midwest and regional Two South Biscayne Boulevard Mr. Carroll assuming the role of Resident Manager. offices. Suite 3500 Also joining are Associates Corey Tracey and Tara Miami, FL 33131 Contact: Burke, both of whom worked with Mr. Carroll at 305-577-7600 312 Walnut Street, 25th Floor his previous firm. ORLANDO OFFICE Cincinnati, OH 45202 390 North Orange Avenue (513) 898-0050 Suite 1285 Orlando, FL 32801 407-246-8440 Sign Up for Online Workplace Law News Looking for help staying on top of workplace law developments? Register for free e-mail delivery of Preventive Strategies Online Workplace Law News to have our legal updates sent to your inbox monthly. Read what our professionals are saying about labor, employment, benefits, and immigration issues and devel- opments. Go to http://myupdates.jacksonlewis.com and complete the electronic form. (Your information is confidential and will not be shared with a third party.)

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Albany, NY Jacksonville, FL Phoenix, AZ (518) 434-1300 (904) 638-2655 (602) 714-7044 Albuquerque, NM Las Vegas, NV Pittsburgh, PA (505) 878-0515 (702) 921-2460 (412) 232-0404 Jackson Lewis LLP represents management Atlanta, GA Long Island, NY Portland, OR exclusively in employment, labor, benefits and (404) 525-8200 (631) 247-0404 (503) 229-0404 immigration law and related litigation. Birmingham, AL Los Angeles, CA Portsmouth, NH (205) 332-3100 (213) 689-0404 (603) 559-2700 The firm has 42 offices and over 565 attorneys. Boston, MA Memphis, TN Providence, RI Jackson Lewis represents employers before state (617) 367-0025 (901) 462-2600 (401) 490-3444 and federal courts and administrative agencies on Chicago, IL Miami, FL Raleigh-Durham, NC a wide range of issues, including discrimination, (312) 787-4949 (305) 577-7600 (919) 854-0044 wrongful discharge, wage/hour, affirmative action, Cincinnati, OH Minneapolis, MN Richmond, VA immigration, and pension and benefits matters. (513) 898-0050 (612) 341-8131 (804) 649-0404 Jackson Lewis negotiates collective bargaining Cleveland, OH Morristown, NJ Sacramento, CA agreements, participates in arbitration proceedings (216) 750-0404 (973) 538-6890 (916) 341-0404 and represents union-free and unionized employers Dallas, TX New Orleans, LA San Diego, CA (214) 520-2400 (504) 208-1755 (619) 573-4900 before NLRB and other federal and state agencies. Denver, CO New York, NY San Francisco, CA The firm counsels employers in matters involving (303) 892-0404 (212) 545-4000 (415) 394-9400 workplace health and safety, family and medical Mail regarding your leaves and disabilities. Detroit, MI Omaha, NE Seattle, WA subscription should be sent to (248) 936-1900 (402) 391-1991 (206) 405-0404 [email protected] or Greenville, SC Orange County, CA Stamford, CT Jackson Lewis LLP (864) 232-7000 (949) 885-1360 (203) 961-0404 59 Maiden Lane, 39th Floor Hartford, CT Orlando, FL Washington, D.C. Region New York, NY 10038 (860) 522-0404 (407) 246-8440 (703) 483-8300 Attn: Client Services. Houston, TX Philadelphia, PA White Plains, NY Please include the title of (713) 650-0404 (267) 319-7802 (914) 328-0404 this publication.

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