By Lynne Curry, Ph.D., SPHR bio
“J.J.” is a hard-working, talented manager who makes caustic statements when he stresses out. Although he initially offended you when you first started supervising him, you learned not to take his comments to heart. When others come to you upset, you tell them, “That’s just J.J. being J.J.” Some coworkers even appreciate J.J.’s bluntness. Several have said, “At least, you always know what he’s thinking.”
Others have told you J.J. can cross the line with his comments; however, when you check into what they say, you learn he’s never been discriminatory. So, you don’t worry.
That’s a mistake and potentially a big one.
Courts and regulatory agencies can hold employers liable for what their employees say or do if the employees do it within the “scope” of their employment. In the same way that a victim can sue an employer if an employee creates an accident in a vehicle when driving on a work errand, employers can be held liable for defamatory statements made by their employees if the comments are made “within the scope” of their job or the employer “endorses the conduct.”
A case in point: McLachlan v. Bell. Aeronautical engineer Blair McLachlan worked at the Ames Research Center for the National Aeronautical and Space Administration and sued Dr. Bell and other coworkers at NASA for defamation and intentional infliction of emotional distress. According to attorney Daniel Deacon in his article “Mitigating Risk for Rogue Employee Speech,” the 9th Circuit Court found the employer could be held liable for the co-worker’s comments since the “employees’ alleged defamatory statements about a co-worker…related to his work on aeronautical engineer projects for NASA, …took place in the workplace and were related to business activities.”
In a contrasting case, Sade Garnett v. Remedi Seniorcare of Virginia, LLC, No. 17-1890 (June 11, 2018), the Courts ruled that employers don’t need to police every employee interaction, particularly ones made outside the scope of their employment (https://www.virginiadefamationlawyer.com/no-vicarious-liability-unless-statement-made-within-scope-of-employment/).
In that case the employee, Sade Garnett, told a night supervisor at Remedi that she’d be on leave for surgery the next day. Her supervisor then told other employees Garnett was having surgery on her vagina because she had an STD. Garnett then sued her employer, and not her supervisor, for defamation. According to the Court, although the supervisor made the comments at work, Remedi wasn’t liable because the supervisor wasn’t under the employer’s control, wasn’t performing assigned work, and wasn’t acting in the employer’s interest when he made the comments. Said the Court ruling, the supervisor’s “gossiping to his co-workers” was outside his scope of his employment. Still, Remedi suffered through a lawsuit.
Your take-away as an employer: If you employ someone who, “within the scope of his employment,” says things that others consider defamatory or if you “endorse their conduct” by knowing about it and allowing it to continue, you take a risk you may regret.
Lynne Curry, PhD, SPHR, SHRM-SCP, is author of “Beating the Workplace Bully” and “Solutions,” which has great articles on how to remember names & 60 real-life workplace dramas with practical solutions. Both have 4.8-star ratings on Amazon.com.
Curry and her group regularly work with law firms and medical practices and hospitals, providing HR on-call, training, expert witness work, facilitation, strategic planning, investigation, mediation, and executive and professional coaching. You can reach her at www.thegrowthcompany.com or LCurry@avitusgroup.com or via LinkedIn or Twitter @lynnecurry1.
