Spell out duties during business trips
By Kelly McCarthy-Sutherland
Q: When is an employer liable for an employee’s off duty
conduct?
A: In general, an employer cannot be held liable for an
employee’s off duty conduct. Sometimes, however, it is not clear
whether an employee’s conduct is off duty or on duty.
Spell out duties during business trips
By Kelly McCarthy-Sutherland
Q: When is an employer liable for an employee’s off duty conduct?
A: In general, an employer cannot be held liable for an employee’s off duty conduct. Sometimes, however, it is not clear whether an employee’s conduct is off duty or on duty.
The Ninth Circuit Court of Appeals recently explored this issue in the case of Nationwide Mutual Insurance Company v. Liberatore, et al.
Command Master Chief William Liberatore was sent by the U. S. Navy to California to meet with his counterpart on a project and to visit two other bases. His orders specifically acknowledged that he would have leisure time, and he planned to spend it with his friend Sheri Ivey (who may no longer be his friend after what happened next). After picking up his rental car, Liberatore drove to Ivey’s house. Since she was not home yet, he went to the nearby Veterans of Foreign Wars post where he drank three beers prior to returning to her house.
Once she returned home, Liberatore and Ivey decided to drive to Nevada to gamble and spend the night. On the way, they bought a 12-pack of beer. In violation of California laws, both of them drank beer in the car during the drive. When they came to a traffic slowdown near the scene of an earlier traffic accident, Liberatore did not stop in time, and he crashed into a large truck. He was arrested at the scene for drunken driving.
Ivey suffered multiple, serious injuries from the accident. She then sued (her apparently former friend) Liberatore, the rental car company, and the U. S. Navy. The U.S. Navy argued that it could not be liable for Liberatore’s off-duty conduct. The Ninth Circuit agreed with the U. S. Navy, holding that employers are liable for the actions of their employees when the risk was one that may be regarded as typical of the enterprise undertaken by the employer. The employer will not be liable “where the employee substantially deviates from the employment duties for personal purposes.”
Here, the Court found that Liberatore substantially deviated from his employment duties in drinking alcohol in the rental car on the way to Nevada to gamble, and the U. S. Navy therefore would not be liable for Liberatore’s actions. Employers should keep in mind that they can be liable for their employees’ on-duty conduct, so they should be careful to clarify what parts of business trips are included in the employee’s duties. For their own protection, employers should provide traveling employees with written instructions regarding what duties are to be performed during the trip.
This column is the work product of Lombardo & Gilles, PC which has offices in Hollister and Salinas. Kelly McCarthy-Sutherland is a lawyer with Lombardo & Gilles, PC, specializes in Employment Law and can be reached at 1-888-757-2444. Mail your questions to Jeff Gilles, It’s the Law, c/o The Pinnacle, 380 San Benito St., Hollister CA 95023 or contact Jeff at 1-888-757-2444.
