Whose Fault is It?

Posted in Negligence on September 29, 2015

finger pointingMore often than not an “employer” is a corporate entity, considered legally separate from its employees and certainly separate from a third party. Thus, harm suffered by an employee in the work context is usually at the hands of a supervisory or same-level employee or a third party.  However, employees and third parties are often financially unable to fund a judgment if one is issued. In other words, in some cases, if the employee cannot sue the employer itself, they are unlikely to actually receive compensation for the wrong they suffered.

Thus, an issue in many employment related lawsuits is when an employer is responsible for actions against an employee by a co-worker or a third party. The answer depends on the wrongful acts, the claims sought, and whether the action was caused by a co-worker or third party. It is a huge issue and today we will discuss just a piece of it – when one employee harms another employee.


In many cases, the wrongful act incurred by the employee would not have occurred if the employer had avoided hiring the wrongdoer or had timely fired the wrongdoer. Take, for example, an employer that knew about multiple allegations against an employee for sexual harassment but did not terminate that employee and the employee committed an on-the-job sexual assault of another employee. If the employer had terminated the employee, the assault would not have occurred.

The causes of action for cases like this are called “negligent retention” or “negligent hiring,” depending of the circumstances. However, in New York, these types of actions are preempted by the Workers Compensation statute. That statute provides that Worker’s Compensation is the exclusive (i.e. only) remedy for injuries to an employee by another employee. New York courts have expressly held this prohibits negligence-based claims (like negligent retention and hiring) where those claims are based on harm to an employee by another employee.

Intentional Torts

Despite the negative impact of the Worker’s Compensation law on negligent retention and hiring, there is an exception for intentional torts like assault, battery, false imprisonment, and intentional infliction of emotional distress. However, this simply allows claims against the wrongdoer, the employee, and the issue becomes whether the employer can be held liable for that wrong-doer’s actions.

Whether the employer can be held liable swings on a principle called respondeat superior.  Under New York law as set out in Rowley v. City of New York, 2005 U.S. Dist. LEXIS 22241, *34 (S.D.N.Y. Sept. 29, 2005), an employer will generally be held liable under this principle for the acts of an employee that are within the “scope of employment.” For example, an incident at lunch in the office is likely within the scope of employment while a non-business-related trip to a restaurant an hour away during lunch likely is not.

These are simplistic examples. The reality is that what is within the scope of employment is a source of many arguments and determined  connection between the time, place, and reason for the act, whether the employee typically does the act as part of their job, and whether the employer could have anticipated the act.

Harassment, discrimination, retaliation is a serious violation of employees’ rights in the employment context and dignity as people. If think you have been subject to sexual harassment, contact the attorneys at Joseph & Norinsberg today at (212) JUSTICE or e-mail us at and let us take over the fight for you.

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