Employee Misconduct and Workplace Torts

Prepared in connection with the seminar, "Recent Developments in Employment Law," presented by Sterling Education Services, LLC in Chattanooga, Tennessee on May 8, 2003

A. EMPLOYEES' OFF-DUTY MISCONDUCT

1. When Does Off-Duty Misconduct Become an Employment Issue?

Traditionally, under the common law employers have had wide discretion to set whatever conditions they desire concerning jobs and the workplace. After all, employer-employee law was once known as "master-servant" law. However, such plenary control over employees in the workplace and beyond has come into conflict with societal values which have emerged in the last half-century – particularly such values as privacy, freedom of expression and individual autonomy.

Like many other areas in employment law, challenges to employer "intrusions" were first successfully made by employees in the public sector, using constitutional protections such as freedom of speech, freedom of association, and liberty interests. In the private sector, such employer "intrusions" may be subject to challenge under civil rights legislation, or possibly under collective bargaining agreements setting certain industry standards.

Employees' off-duty conduct and choices become employment issues whenever employment decisions are based upon them, rightly or wrongly. If an employee is disciplined or fired for off-duty conduct, or if an applicant is rejected on account of off-duty conduct, then there is an "employment issue." Whether such decisions are lawful or unlawful will depend upon various factors. Leaving until later the question of public employees (discussed below), in the private sector there are at least four primary concerns when it comes to employment decisions and actions based upon off-duty conduct: (1) whether the employment decision indicates discriminatory motivations or else affects members of some protected class in a disparate manner; (2) for employees who have contracts of employment requiring some sort of "just cause" for termination, whether the off-duty conduct can amount to such "just cause"; (3) for "at will" employees, whether the off-duty behavior falls within some public policy exception; and (4) whether the employee may legitimately claim an invasion of privacy by the employer.

If an employee makes an employment decision upon off-duty conduct which leads to the assertion of some legal claim, then it may become incumbent upon the employer to show some nexus between the off-duty conduct and the character of the employment or the employer's legitimate business interests. Conduct outside the workplace which is merely something the employer does not like is less likely to be seen as a legitimate ground for termination or discipline. However, if the off-duty conduct harms the employer's reputation, or causes others to question doing business with the employer, or makes it difficult for the employer to function efficiently or direct its workforce, then a resulting employment decision will more likely be viewed as legitimate.

Tennessee developments in this area are minimal. There are few cases and few statutes which specifically address off-duty conduct of employees. Tennessee does recognize causes of action for unlawful discrimination, invasion of privacy (discussed in more detail below), and breach of an employment contract. Tennessee employers should expect that more privacy-related cases will be filed and decided under Tennessee law, as well as other cases involving questions concerning employment decisions and actions based upon employees' off-duty conduct. We should expect that Tennessee courts will look to decisions from other jurisdictions for guidance, and therefore, these materials will make reference to decisions from other states, as well as Tennessee cases.

2. Specific Examples of Off-Duty Conduct.

Smoking. Some employers want to limit their workforces to non-smokers, for various reasons (such as better group health insurance rates, or simply a healthier overall workforce). In Tennessee, an employer may have a no-smoking policy at work. However, by statute, "no employee shall be discharged or terminated solely for participating or engaging in the use of [an agricultural product]... not proscribed by law if such employee participates or engages in such activity during times when such employee is not working." Tenn. Code Ann. § 50-1-304(e)(2). It is worth noting that this statute prohibits termination solely for use of tobacco products away from the workplace. Also note that this is Tennessee's "whistleblower" statute, which also prohibits termination solely for whistleblowing. There are no reported Tennessee decision applying this statute in the context of terminations for off-duty smoking, but undoubtedly proof that a termination was solely motivated by use of tobacco products would be a significant burden for an employee to overcome. In addition, the statute provides that if an employee makes a baseless and frivolous claim, he or she may be required to pay the employer's attorneys' fees.

Otherwise, smoking is not a "disability" under discrimination laws, and there are no other restrictions regarding an employer's smoking policies and practices. Even in Tennessee, an employee could be charged a higher group health insurance premium or premium contribution by the employee, since the statutory prohibition is limited to terminations.

Arrests and convictions. What if an employee is arrested, or convicted, for off-duty activities? Employers have legitimate business interests in learning about such matters, since an employer may be sued for negligently hiring or negligently retaining an employee who is, for example, violent. In addition, many crimes would be indicative of possible safety and security concerns, such as crimes involving theft, dishonesty, or drugs. The EEOC has taken the position that asking job applicants about arrests (as opposed to convictions) might tend to disparately impact minorities. However, for existing employees, employers are not generally prevented from terminating employment when an employee has been arrested or convicted for some off-duty conduct. The general rule still applies, however, that the employer should be uniform in making such decisions. For example, if an employee in a protected class (e.g., racial or ethnic minorities, or religious minorities) was fired for off-duty conduct, yet other employees outside the protected class were not fired for similar conduct, then in spite of the employer's legitimate interests, this could be viewed as evidence of unlawful discrimination.

Drugs. Drug testing has the potential to reveal an employee's use of drugs outside of work hours. Generally speaking, private employers are permitted to utilize the results obtained through their legitimate drug testing procedures, and an employee may be terminated for failing a drug test, even if the ingestion of drugs supposedly occurred away from work. Most courts would likely uphold the legitimacy of the employer's interests in such cases.

For purposes of unemployment compensation benefits, Tennessee cases for several years seemed to go both ways on the question of whether failing a drug test would be "misconduct connected with work," so as to disqualify an applicant for benefits. After all, if the drug test was failed on account of off-duty drug use, how could that be "misconduct connected with work?" However, since 1999 Tennessee's unemployment compensation statutes have provided that failing a drug test, or refusing to participate in a drug test, conducted under Tennessee's Drug Free Workplace Program is deemed work-related misconduct, disqualifying the applicant from unemployment compensation benefits. Tenn. Code Ann. § 50-7-303(a)(2).

Surveillance. Some employers engage in surveillance of workers on the job, which raises questions under federal wiretapping laws, if audio surveillance is used. Exceptions under the wiretapping statutes may protect the employer in some circumstances. But what about surveillance of the employee away from the workplace? Frequently when an employer disputes the legitimacy of a workers' compensation claim, the employer or its insurer hires a private investigator to watch the employee perform daily activities. Generally speaking, such surveillance will be permissible to the extent it involves watching the employee's activities while he is in a place where he can be seen by other members of the general public. However, if the surveillance is overly intrusive, or if it pierces into the realm where the employee can claim a legitimate expectation of privacy, then the employer may face liability for invasion of privacy (discussed below).

Conflicts of interest. Can an employer require that its employees not work second jobs, or hold other positions which might place the employee in a conflict of interest? Generally speaking, yes, employers can require undivided loyalty as a condition of employment, so long as that requirement is uniformly applied. In fact, the employer may have claims against an employee who sets up a competing business, even when there is no non-compete agreement, if the employee uses the employer's proprietary information, or if the employee breaches his duty of loyalty by making competing business arrangements while still employed.

Political association and expression. For public employees, political activity is subject to constitutional protection and statutory regulation. Generally, public employees in "policymaking" positions may be dismissed based on political affiliation. Required loyalty oaths and prohibitions against membership in subversive organizations are generally permissible for public employees.

Sometimes private employees allege that restrictions on their political activities are unlawful. In Tennessee, Tenn. Code Ann. § 2-19-134 makes it unlawful for private employers to "coerce or direct" their employees to vote for or against any particular political candidate or any measure on the ballot, or to discharge a private employee for voting or failing to vote. However, beyond the statute, political affiliation is not a "protected class" in the nature of minority status.

Marriage and personal relationships. Marital status is not a protected class under Tennessee or federal discrimination laws. Therefore, in theory, an employer may discharge an employee on the grounds of marital status. However, employment decisions based upon who an employee marries can run afoul of discrimination laws where: (i) a neutral policy is only applied to one sex (e.g., only married women are rejected, not married men); (ii) the employment decision is based upon the employee's marriage to someone of a minority (e.g., racial, ethnic, etc.); or (iii) the employment decision is based upon the employee's spouse's engagement in activities protected by the National Labor Relations Act.

Anti-nepotism policies are generally permitted on the basis of preventing conflicts of interest and reducing favoritism, regardless of whether the employer is a public entity or a private one. Even though the "right to marry" has been deemed a fundamental constitutional right [see Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992)], anti-nepotism policies in public employment will generally be viewed under the "rational basis" standard, rather than under the "strict scrutiny" standard. See Montgomery v. Carr, 101 F. 3d 1117 (6th Cir. 1996).

Sometimes employers make employment decisions based upon the employee's extramarital relationships and "affairs." Generally speaking, such decisions are permissible. In a variety of cases from other jurisdictions, such employment decisions have been challenged on grounds ranging from claims of emotional distress to invasion of privacy, but thus far employees have found no success in the reported cases.

Many employers also promulgate non-fraternization policies which forbid dating or sexual relationships between co-workers, or sometimes limited to supervisory and subordinate co-workers. Employees in other jurisdictions have challenged such policies on grounds of public policy, privacy, or freedom of association, but thus far anti-fraternization policies have been upheld. In the context of supervisors and subordinates, the rationale for such policies is clear – avoidance of potential sexual harassment claims. Other reasons employers give for such policies include lower productivity of distracted workers, lower morale due to perceived favoritism, and the potential for retaliation if the relationship ends. On the other hand, some employers see office romances as potentially beneficial, adding enthusiasm and energy to the workplace. Some employers simply want to encourage "family friendly" workplaces.

Can an employer ban an employee from dating or sexual relationships with others outside the company? In Bloom v. General Electric Supply Co., 702 F. Supp. 1364 (M.D. Tenn. 1988), the employee was fired because her husband took a job with a competitor of the company. She sued for retaliatory discharge, claiming that her termination was in violation of public policy. The court granted summary judgment to the employer on the claims based upon "employment at will" as public policy, but it denied summary judgment and set the case for trial as to whether the termination violated Tennessee's statutory public policy disfavoring restraints of trade, since the employee's husband worked for a competitor. No further information is available in reported decisions as to whether the case actually went to trial, settled, etc., so there is no reported decision as to whether a termination under such circumstances would violate Tennessee's public policy. Presumably if the spouse worked for a company which was not competing with the employer, Tennessee public policy would not be implicated.

Sexual preference. Sexual orientation is not a protected class under either Tennessee law or federal discrimination law. Some municipalities have adopted anti-discrimination ordinances on the basis of sexual orientation, and at the time these materials are being prepared such a provision is being considered by Nashville. Some employees have claimed that, since homosexuals are perceived to be more likely to become victims of AIDS, then employment decisions based upon this perceived "disability" would violate the ADA – but thus far such arguments have not met with any success.

3.Statutory Limitations on Disciplining Employees for Off-Duty Misconduct.

There are few Tennessee statutes which would purport to limit employers from disciplining employees for off-duty conduct, and such statutes have been addressed above. They include: Tenn. Code Ann. § 50-1-304(e)(2), which prohibits Tennessee employers from discharging employees solely because they smoke or use other legal agricultural products; Tenn. Code Ann. § 50-7-303(a)(2), which provides that failing a drug test does constitute work-related misconduct so as to disqualify an applicant from unemployment compensation benefits; and Tenn. Code Ann. § § 2-19-134, which forbids Tennessee employers from coercing or disciplining employees with respect to their voting activities.

4. Basic Privacy Rights.

As noted above, while the general rule is that employers may impose whatever conditions they wish on employment (so long as such conditions do not take into account the employee's membership in certain "protected classes"), an employer's attempts to regulate an employee's off-duty conduct, or to pry into that conduct, even if otherwise lawful, could rise to the level of an actionable invasion of privacy. Therefore, Tennessee employers should bear in mind the basic legal principles regarding invasion of privacy as a cause of action.

Many states recognize four distinct types of invasion of privacy claims: (1) intrusion into a person's seclusion; (2) public disclosure of private facts; (3) presentation of the individual to the public in a false light; and (4) commercial appropriation of a person's name or likeness. In Givens v. Mullikin, 75 S.W. 2d 383, 411 (Tenn. 2002), the Tennessee Supreme Court noted that it had never expressly recognized a privacy rights violation other than a "false light" claim, although the Tennessee Court of Appeals has recognized other types of privacy claims. "False light" invasion of privacy is very similar to a defamation claim, except that truthfulness of the statement is not an absolute defense. Instead, the "angle from which the facts are presented" or the "omission of certain material facts" and resulting inferences are the critical factors. See Flatt v. TSSAA, 2003 Tenn. App. LEXIS 7 (M.S., decided January 9, 2003). As in defamation cases, a plaintiff who is a public figure asserting a "false light" invasion of privacy claim must also prove "actual malice," as that term is defined in defamation law. Id.

While the Tennessee Supreme Court has only expressly recognized "false light" invasion of privacy, it has "assumed" that the other recognized types of privacy claims may be cognizable. In Martin v. Senators, Inc., 220 Tenn. 465, 418 S.W. 2d 660 (1967), the Court quoted with approval from earlier cases and from the Restatement (Second) of Torts § 867, defining a privacy right violation to include "the right to be let alone; the right of a person to be free from unwarranted publicity," and stating; "A person who unreasonably and seriously interferes with another's interests in not having his affairs known to others or his likeness exhibited to the public is liable to the other." 418 S.W. 2d at 662-63. Therefore, it is arguable that Tennessee recognizes "intrusion into seclusion," "public disclosure of private facts," and "commercial appropriation" invasion of privacy claims, if not expressly, then by implication.

In Martin, the employee worked as a "hat check girl" at a private club, and she consented to be photographed for the club's bulletin, circulated only to members. When the employer later included her photograph in a newspaper advertisement, she claimed she was humiliated and mortified. The Court affirmed the dismissal of her case because she waived her privacy rights when she consented to allow the photograph to be exhibited in the bulletin, which could have been shown by members to anyone.

In the context of an employee's off-duty conduct, the most likely types of claims would be for "intrusion into the employee's seclusion." For example, in Alabama inquiring into an employee's sex life may be an actionable claim, Ex Parte Atmore Community Hospital, 719 So. 2d 1190 (Ala. 1998), but in Kentucky reading and copying an employee's private journal is not necessarily an actionable claim, Ghassomians v. Ashland Indep. Sch. Dist., 55 F. Supp. 2d 675 (E.D. Ky. 1998). Whenever an employer pries into an employee's "private life" and learns information about the employee not known to others, the employee may claim an intrusion into his seclusion. The cases and outcomes are varied, and the viability of the claim will depend upon the specific facts of the case.

When that same employer not only learns such private information, but then somehow disseminates it to others, then a "public disclosure of private facts" claim becomes more likely. Once again, the facts of the given case will determine the viability of the claim.

As a general rule, employers should carefully consider the reasons they need to know otherwise "private information" about an employee. The more the employer can articulate a legitimate business reason for knowing about the employee's off-duty conduct and private life, the better chance the employer could avoid liability if the employee sues for invasion of privacy. In addition, once private information is learned, the employer should use great caution not to disclose or disseminate it in such a manner as to lead to a separate invasion of privacy claim.

5. Private vs. Public Sector Employees. Public employees may be entitled to constitutional protections unavailable to employees in the private sector. Some public employees have a legally recognized "property interest" in their jobs, and all public employees have a "liberty interest" in their jobs. These property and liberty interests cannot be deprived without certain procedural due process to the employee.

State law determines whether a public employee has a property interest in his job. A property interest exists when the public employee has a legitimate claim of entitlement to continuing employment, such as through a statute or regulation creating a specific term of employment, or a statute or regulation establishing specific grounds for discharge, or through an express or implied contract prohibiting arbitrary dismissals. For example, tenured teachers have property rights in their jobs. However, many public employers specifically provide that certain public jobs do not give rise to any property interest, and the employees are "at will" employees of the public body.

If a public employee does have a property interest in his job, he cannot be deprived of that property right (i.e., his employment cannot be terminated) without due process. In general, there is usually a right to pre-termination due process (i.e., notice of the charges against the employee and a meaningful opportunity to be heard) and post-termination due process (i.e., a full hearing and review of the termination decision by some sort of fair and impartial tribunal). The pre-termination due process does not require a full-fledged hearing, but rather some notice and some opportunity to be heard.

Regardless of whether a public employee has a property interest in his job, he will have a "liberty interest." This is an interest in the employee's good name, reputation, honor and integrity. If the public employee is fired for reasons which would stigmatize his good name, and if the reasons are made public, he is entitled to a name-clearing hearing in order to avoid depriving him of his protected liberty interest. The name-clearing hearing must provide the public employee a meaningful opportunity to clear his name, but that is the only purpose of the hearing – the employer is not required to re-hire the employee, even if the employee proves the inaccuracy of the stigmatizing statements.

In the context of public employers monitoring the off-duty conduct of public employees, such monitoring and any decisions based upon off-duty misconduct could trigger the employee's due process rights. For example, if a public employee is fired for having "loose morals" because he leaves his wife and moves in with his pregnant girlfriend, the employee could challenge the "loose morals" standard as being unconstitutionally vague, and he may be entitled to either a property interest or liberty interest hearing, or both.

In general, police officers and teachers appear to be held to higher standards of off-duty conduct that other public employees because they are "role models," and therefore they have fewer privacy protections.

Federal employees have greater protections against dismissal for off-duty activities than state, county, or local public employees, because a federal statute requires that the "efficiency of the service" of the employee must somehow be impaired by the off-duty conduct. 5 U.S.C. § 7503(a).

Courts reviewing discharges of public employees for off-duty misconduct have looked for some nexus between the conduct and the public employer's operations, such that terminating the employment is somehow necessary to the efficiency of the governmental agency or entity. For example, discharges have been upheld by reviewing courts where an employee was engaged in egregious sexual misconduct [Borges v. McGuire, 487 N.Y.S.2d 737 (App. Div. 1985)(police department employee posed nude for "Beaver Magazine")]; where the employee engaged in off-duty racist or similar conduct [Tindle v. Caudell, 56 F. 3d 966 (8th Cir. 1995)(police officer disciplined for appearing at Halloween party in "blackface")]; and where an employee assaulted another off-duty co-worker [Morgan v. Mass. Gen. Hosp., 901 F.2d 186 (1st Cir. 1990)]. But see Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985), cert. denied, 476 U.S. 1159 (1986)(discharge of police officer for performing off-duty in "blackface" violated his free speech rights). Employees have been successful in challenging employment decisions to not hire unwed mothers [Andrews v. Drew Mun. Separate Sch. Dist., 507 F.2d 611 (5th Cir. 1975), cert. dismissed, 425 U.S. 559 (1976)]; the termination of a middle aged, divorced school teacher who had an overnight guest of the opposite sex [Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973)]; and the discharge of a teacher for a single, noncriminal homosexual episode with a fellow teacher [Morrison v. State Bd. of Educ., 461 P.2d 375 (Cal. 1969)].

B. WORKPLACE TORTS

1. Misrepresentation.

Misrepresentation by employers can lead to liability, particularly when the employer has misrepresented something to a prospective employee in the course of the hiring process. Many employers have recognized that a 2000 New Jersey jury verdict in favor of an employee for $10 million could be a wake-up call regarding such situations. In that case, former pro football player Phil McConkey was being recruited by an insurance brokerage firm to leave his current employment and accept a job in a different state. He had heard rumors that the company might be the target of a takeover, so he asked the CEO about the rumors. The CEO denied them, even though in actuality the takeover process was already underway. Seven months after McConkey left his old job and took a job with the brokerage, the acquisition took place and he lost his position. The jury found that the employer had engaged in intentional misrepresentation, and it awarded McConkey $5 million for punitive damages, $3 million for lost wages, and $2 million for emotional distress damages.

Could something like that happen to a Tennessee employer? Possibly.

Tenn. Code Ann. § 50-1-102 provides that it is unlawful for any person to "induce, influence, persuade or engage workers to change from one place to another in this state, or to bring workers of any class or calling into this state to work in any type of labor... through or by means of false or deceptive representations, false advertising or false pretenses, concerning the kind and character of the work to be done, or amount and character of the compensation to be paid for such work, or the sanitary or other conditions of the employment...". (Emphasis added). Not only is a violation of the statute a Class B misdemeanor, but the statute also gives the employee a right to sue for damages, as well as attorney's fees and costs. While it appears that this statutory cause of action has been rarely used by Tennessee employees, employers should be aware that it exists.

Besides this statute, Tennessee employees might be able to state a cause of action against employers for common law fraud or negligent misrepresentation, depending upon the circumstances. The employee would need to be able to prove the requisite elements of these causes of action, but there is nothing which would make them any less viable in the employment context. Moreover, since the claims are based in tort, it would make no difference whether the employee was "at will" or under a contract of employment for a specific term. Employees may find it difficult to prove that an employer knew its statements were false at that time they were made, but if that can be proved (as in the McConkey case, discussed above), the potential liability could include punitive damages.

For example, in Jarrett v. Harrison Epperly & Epperly, Inc., 896 F.2d 1013 (6th Cir. 1990), the employer enticed the employee to leave his old job with the promise of part ownership after ten years. In the following ten years, the company prospered. Just before the employee was to be made part owner, the employer sold the business, and the employee was out of luck. He sued for breach of contract, fraud and promissory fraud, and the jury found in his favor for $800,000. The Court of Appeals affirmed the verdict.

Sometimes the employee who is induced to change jobs by misrepresentations of the employer may sue under a theory of promissory estoppel or implied contract, and some Tennessee courts have shown a willingness to consider such claims, even when the employee was "at will." For example, in Richardson v. Goodall Rubber Co., 1986 Tenn. App. LEXIS 3237 (August 19, 1986), the employee left her old job based upon the promises and inducements of a new employer, but then the new employer declined to hire her, after she had already resigned. The trial court found that the employee had relied to her detriment on the promises of the new employer, and therefore she was entitled to recover under the theory of promissory estoppel. The Court of Appeals affirmed the judgment.

By comparison, in Duncan v. American Technical Assoc., Inc., 1988 Tenn. App. LEXIS 407 (July 15, 1988), the employee was promised a job in Tennessee, whereupon he quit his old job in Arizona and bought a house in Tennessee. On the day he was to start, he was told that he was not qualified for the position. He sued the employment agency which had lined up the job (but not the employer), claiming fraudulent inducement. The trial court granted summary judgment to the agency, but the Court of Appeals reversed.

Finally, in Georgio v. Howmet Corp., 1992 U.S. App. LEXIS 11235 (6th Cir. 1992), the plaintiff claimed that she moved her family from New Jersey to Tennessee in reliance upon a promise of employment, only to be told that there was no position available once she had moved. She sued the employer under the theories of breach of an oral contract, misrepresentation, promissory fraud, and promissory estoppel. The employer was granted summary judgment on the first three claims, and the promissory estoppel claim went to the jury, which found in favor of the employer. The Sixth Circuit affirmed the judgment, with little discussion of the theories, because of the employee's failure to take required procedural steps at the trial level.

2. Negligent Hiring.

One area which truly puts employers "between the rock and the hard place" is potential negligence liability related to the acts and omissions of employees. Most employers understand that they can face vicarious liability under the theory of respondeat superior when an employee causes harm while acting in the course and scope of employment. As a corollary to this rule, if the employee committed some intentional act which caused harm, he could seldom be found to have done so in the course and scope of employment, so there should be no respondeat superior liability for the employer. That is a source of relief for employers, since they should not be held vicariously liable for the employee's intentional acts. However, the employer may be found directly (not vicariously) liable for its own acts and omissions (not the acts or omissions of the employee) if the employer somehow allowed the injured person to be put in harm's way. Most typically this would involve claims that the employee was negligent in hiring an employee who in some manner presented a danger, or that the employer was negligent in retaining (i.e., keeping employed) or in supervising a dangerous employee, after the employer had knowledge of the employee's dangerous tendencies.

On the one hand, employers face potential liability to job applicants and employees if they are "screened" based upon certain factors, such as, for example, mental impairments. Likewise, asking questions about an applicant's arrest history has been found, under some circumstances, to unfairly implicate certain minority groups. Therefore, the employer must be careful in its inquiries. And yet, on the other hand, if the employer does not go far enough in its screening and inquiries, it could face liability to third persons who are placed in harm's way.

Perhaps one of the most instructive Tennessee case in this area is Gates v. McQuiddy Office Products, 1995 Tenn. App. LEXIS 715 (November 2, 1995). In that case, a delivery man robbed a woman and shot her husband while making a delivery. He was making a delivery next door, not to the plaintiffs, when apparently their office caught his eye and he made a diversion to commit the robbery. The injured plaintiffs claimed that the delivery man had a criminal record, and that the employer should have foreseen that he might commit these acts in the course of making deliveries, making the employer guilty of negligent hiring and supervision. The Court of Appeals disagreed, noting that the employee had not disclosed his prior drug convictions on his application or in interviews, and the employer had attempted to check his references. The Court noted that "an action for negligent hiring requires something more than a showing of past criminal conduct. There must be (1) evidence of unfitness for the particular job, (2) evidence that the applicant for employment, if hired, would pose an unreasonable risk to others, (3) evidence that the prospective employee [sic, should be employer] knew or should have known that the historical criminality of the applicant would likely be repetitive." The Court also noted that "depending upon the particular employment and unless put on notice, an employer has no duty to check every job applicant's background." Finally, the Court stated that a claim of negligent supervision would require proof "that the employer was in complete charge of the work being performed by the employee." Under the facts of the case, the Court affirmed a grant of summary judgment to the employer.

Wisdom v. Maddry, 1999 Tenn. App. LEXIS 716 (Oct. 14, 1999) presents a fairly typical scenario. In that case, two hospital patients sued a hospital after they were sexually assaulted by a male nurse. The plaintiffs claimed the hospital had failed to adequately investigate the employee's background, which would have shown his propensity to sexually abuse females. In that case, the employer was able to show that none of the records available to it contained information giving the hospital either actual notice or "inquiry notice" regarding the employee's propensity to commit assaults, and therefore the employer won a summary judgment, which was affirmed by the Court of Appeals.

In Smith v. Keyport Self-Storage, 2000 Tenn. App. LEXIS 301 (May 5, 2000), an employee of a self storage facility stole the plaintiff's property and disappeared. The plaintiff claimed the employer was negligent in supervising its employee. A jury found for the plaintiff and awarded $50,000, but the Court of Appeals reversed, finding that the thefts were not foreseeable to the employer, under the circumstances of the case, and therefore there was no negligence. The Court found that the employer had no reason to know that its employee was likely to commit a theft.

Finally, in Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001), the Tennessee Supreme Court decided an important case for employers to consider in this context. In Limbaugh, the Court considered how to apportion fault between an employee who has committed an intentional act and an employer whose negligence allowed the act to be committed. In that case, the plaintiff was assaulted by a nursing assistant. Following a bench trial, the Circuit Court awarded the plaintiff $25,000 against the nursing assistant for assault and battery, plus $40,000 against the employer hospital for its negligence. The Court of Appeals reversed as to the employer on grounds of statutory immunity. The Supreme Court held that the employer hospital was not immune for its own negligence in failing to protect the resident, and that when a plaintiff is injured by the intentional acts of one tortfeasor, made possible by the negligence of another tortfeasor, and where both tortfeasors are parties to the lawsuit, they are jointly and severally liable for the entire amount of damages awarded. In other words, the plaintiff could pursue the employer for both the $25,000 award and the $40,000 award. Presumably the employer could seek contribution and indemnity against the employee, since the employer was "only" negligent, but if the plaintiff enforced the full judgment against the employee, the employee could not seek contribution and indemnity from the employer because the employee's acts were intentional. (This is discussed in footnote 11 of the opinion).

3. Wrongful Termination in Violation of Public Policy.

The tort of wrongful termination in violation of public policy is discussed in detail in a separate article on this web site, titled "The Lurking Threat of Employee Retaliation Claims." The reader is encouraged to review that article for a detailed discussion of this topic.

4. Limits on Use of Off-Duty Conduct in Employment Decisions.

This topic is subsumed in the discussion above related to "Employee's Off Duty Misconduct," which also discusses employee off duty conduct which may or may not be classified as "misconduct." The reader should consult the materials above related to this subject.

View all articles by Bob E. Lype