When it comes to working, many of us see it as a simple exchange. We put in a hard day’s work for an honest wage. In return, we expect our employer to provide a safe workplace, with adequate safety equipment, proper training, and safety procedures that are enforced.
Unfortunately, it doesn’t always happen that way. Some employers do not live up to their standard of support, and, as a result, workplace negligence can result in injury that can, at least, lead to a workers’ compensation claim. But what is workplace negligence? How can you know about your rights and if they are being violated? Here are the facts about what workplace negligence is and how you can seek damages if you are the victim of such disregard.
Employer negligence can lead to serious and long-term injuries. Employer negligence is often alleged in injury cases, typically when an employee is hurt or causes harm to someone else. But how can you prove employer negligence in court?
In order to prove any “basic” negligence case, you must have three parts: a duty that someone was supposed to perform; a breach of that duty; and a cognizable injury that was caused by that breach (http://definitions.uslegal.com/n/negligence/ ).
In the workplace, this can come in several different ways. These include:
An employer has a duty of “reasonable care” when it comes to screening individuals who will work for them and with other employees.
They must determine if these new hires will possibly pose a threat of injury to their co-workers or to members of the general public they may be exposed to through workplace interaction. If an employee commits a crime such as murder, sexual assault, injury, theft, or vandalism, the employer can be found to be negligent if he or she did not use due diligence in hiring the employee. For instance, if an employer failed to conduct a basic background check on an employee, this can be used to prove the employer was negligent in hiring the individual (http://www.nonprofitrisk.org/library/articles/employment091008.shtml). Unlike job-related misconduct, negligent hiring arises from acts that the employee performed outside the scope of his employment, such as criminal conduct.
Some employees will not set off any “alarm bells” when they are hired, but they may display behavior that shows them to be unsafe while on the job. Negligent retention is when an employer does not take corrective action against an employee after learning that the employee is unfit after hiring. An example of this would be if an employee were found to be untrained and dangerous when using a piece of heavy machinery such as a crane. If the employer did not retrain, reassign, or discharge the employee, but still allowed him or her to operate the dangerous equipment, then the employer would be liable for damages caused by the employee. Although the exact statutes vary by state, an employer can also be found negligent if he or she is unaware of an employee’s unfitness (http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2010/annualconference/087.authcheckdam.pdf).
Once an employee has been hired, it is the responsibility of the employer to ensure he or she is properly trained on all equipment that they will be using in the course of their employment. For instance, if a fast food employer failed to properly train an employee on how to use a fry machine, the employer could be found negligent if the employee or a co-worker were injured due to unsafe use of the equipment. The employer can also be held liable for harmful acts committed by the employee against the general public.
The fourth way that an employer can be charged with negligence is through negligent supervision. Negligent supervision is a variation of negligent training and the two usually go hand-in-hand. This involves an employer failing to reasonably control or monitor the actions taken by his or her employees. For example, an employer who ignores reports of threats or sexual harassment made by an employee against another employee can be found responsible through negligent supervision (http://abcnews.go.com/Business/CornerOffice/story?id=87194&page=1).
What are the elements for proving negligence in employment?
There are four main elements that must be met in order to legally prove negligence by an employer. These include:
1. The employer owed the victim a duty of care.
If you are an employer, then there is an understood duty of care on your part. To this end, you must ensure and maintain the premises that are used by your employees. As part of this requirement, you must also ensure the premises and equipment are safe. In addition, you must also record and notify the proper authorities with regard to workplace incidents including injuries and reports of harassment and threats. Finally, the employer has a duty to maintain a safe environment that complies with OSHA regulations (https://www.osha.gov/as/opa/worker/employer-responsibility.html).
2. The employer breached the duty of care.
The second element in determining if negligence has occurred comes after the duty of care is established. If the employer then violates their responsibility to uphold this duty, they have breached the duty. This would be the commission of something that a reasonable person could be expected to have foreseen or realized. For instance, if an employer hires an unqualified worker who then injures his or her co-workers or the general public, then that employer has breached the duty of care.
3. The victim was actually injured.
The third element of negligence is whether or not the victim was actually injured. For this, the injuries must be calculable. This would be such as the loss of life or limb from an accident on the job or could also include any physical injuries that may have occurred. In some cases, emotional or psychological trauma may also be considered when determining if the victim has been injured.
4. The injury was a result of the employer’s breach.
The final element of negligence is whether or not the victim’s injury was actually caused by the employer’s breach of the duty of care. In order for negligence to be shown, causation has to be established. This means that if an employee was injured on the worksite, it doesn’t automatically mean the employer has committed negligence. However, if an employer does not maintain proper safety equipment and that causes the employee to be injured, then the duty of care has been breached and it has caused an injury. Then negligence comes into play.
Common forms of negligence
Sometimes, it may be difficult for a person to understand exactly what negligence really is. The following are just a few examples of past negligence cases or common forms of negligence. It should not be thought of as the end all, be all list of possible negligence. But, as a way of clarifying, here are the most common examples of workplace negligence.
Failure to carry workers’ compensation insurance
An employer is mandated by law to carry workers’ compensation insurance. Worker’s compensation insurance is supposed to cover medical and hospital bills for job-related injuries and illnesses, as well as lost wages, usually two-thirds of your regular salary. Employers are also required to post worker’s compensation information such as approved doctors and policies in a prominent place where employees have access to the info. The federal government has workers’ comp program for federal and other types of employees, but each state also has its own workers’ compensation programs and laws (http://www.nolo.com/legal-encyclopedia/workers-compensation-benefits-faq.html).
If an employer fails to carry the insurance or to follow the approved guidelines for the insurance, then they are committing negligence. For instance, if an employee at a moving company sustained a back injury while unloading furniture, and his employer told him that the company wasn’t insured when he asked for the workers’ comp insurance information, the employee could sue his employer for damages. Damages include compensation for his medical bills, rehabilitation, lost wages, and transportation to and from therapy.
Employer’s intentional or egregious conduct
Intentional or egregious conduct is a little more blatant. This can include behavior that is so inappropriate that it is almost shocking. For instance, an employer hitting or striking an employee is committing egregious conduct. Another example would be an employer who violates federal guidelines and makes an employee work in an area that is unsafe, leading to the injury of the employee.
If an employee is injured on the job and files a worker’s compensation claim, the employer is not allowed to retaliate against the employee. For example, an employee cannot be fired or demoted for filing a claim, nor can the employer take unfair disciplinary actions against the employee, including isolating an employee from his or her co-workers. An employer also cannot interfere with a workers’ compensation claim nor can he make threatening statements or intimidate the employee.
Another area of employer action that has been found to be negligent in scope is discrimination. This can include discriminating against a person in terms of race or gender. The creation of a hostile workplace can occur through the use of racial slurs or sexually charged language that constitutes harassment. If an employer either knew of this workplace harassment or should have known and didn’t stop it, or discouraged complaints, the employer could be liable. For instance, if an employee fails to respond to an employee reporting a manager for using a racial slur, then the employer can be held responsible for being negligent.
An employer does not have to personally injure an employee to still be culpable for that employee’s injuries. If a third-party’s behavior leads to an employee injury, then the employer can be responsible if the third party was under the employ of the employer. For example, if a manager is consistently abusive both verbally and physically to an employee, then the employee has the right to report this to the head employer. If the employer does nothing and the abuse continues or escalates into physical violence, then the employer has been negligent in his or her care of duty and is responsible for that third party’s actions. Potential third parties could be non-employer supervisors or project managers, manufacturers of defective machinery or equipment, drivers, outside vendors and contractors, and public utility providers.
A toxic substance claim of negligence usually comes when an employer knowingly allows an employee (or employees) to work in an area with toxic substances that could harm or even kill the employee. An example would be if an employer placed employees in a building with asbestos, a substance that has been linked to mesothelioma, without providing them with the proper equipment to keep them from breathing in the deadly particles.
Defective work products and tools
One of the duties that an employer has is to provide safe equipment for his or her employees to use. Negligence comes into play if an employer knowingly allows faulty equipment to be used. For instance, if an employee reports that machinery needs to be repaired, but it is not taken out of service for these fixes, the employer has failed to live up to his or her responsibility to provide safe working conditions for the employees. If a worker is then injured by the faulty equipment, then the employer would be considered negligent.
If you or someone you know has been injured by a negligent employer, or been wrongfully terminated or punished because of a report of negligence, then you must understand that you do have rights. The skilled attorneys at Wolf & Pravato can give you an idea of whether or not your case is viable and if you can possibly recoup damages from your employer. Contact us today for a free consultation to learn more about your rights at 954-633-8270. For internet-based inquiries, please fill out our online consultation form to schedule a private consultation with one of our attorneys at Wolf & Pravato. You need an experienced and aggressive attorney on your side, and Wolf & Pravato will protect your rights in your employer negligence case.