Respondeat Superior: A Security Supervisor's Perspective

Stephen T. Davis
May 2003

Today's security supervisor is an all-encompassing position. A security supervisor is expected to know everything from policies, procedures, training, hiring, basic management, to various legal aspects of their industry including the doctrine of Respondeat Superior. It is often the security supervisor who can play the greatest role in reducing an employer's liability under respondeat superior. A security supervisor can be an excellent risk management tool for the company, and play a crucial role in saving the company's valuable assets.

The Doctrine of Respondeat Superior

The basis of the doctrine of respondeat superior is that out of principal social duty everyone should maintain his or her affairs whether conducted by himself or herself or an agent, which would be the employee.

According to the doctrine of respondeat superior the principal/employer is liable for any harm caused to a third party bay an agent/employee within the scope of employment. This doctrine imposes vicarious liability on the employer for the employee's actions within the scope of business. Basically an employer can be held liable for actions without regard for personal fault committed by employees within the scope of business. The key to determining if an employer can be held liable under respondeat superior is determining the scope of employment (Clarkson, Cross, Jentz, Miller, 2001).

Determining Scope of Employment

The courts will usually consider eight factors when deciding whether an act was committed under the scope of employment, and thus would fall under the doctrine of respondeat superior. Of these eight factors the first four are of the most importance (Clarkson, Cross, Jentz, Miller, 2001).

1. Did the employer authorize the employee's act?
2. The time, place, and purpose of the act
3. Was the act commonly performed by employees on behalf of the employer
4. How far was the employer's interest advanced by the act?
5. The extent that the private interests of the employee were involved
6. Did the employer furnish the means for the act that lead to the injury? (Example: vehicles, weapons, computers)
7. Did the employer have reason to know the employee would perform the act, or has preformed the act in the past?
8. Whether the act involved the commission of a crime

Respondeat Superior as it Relates to The Security Supervisor

By nature the security industry is prone to lawsuits, and many of them directly deal with respondeat superior. In this industry the security supervisor can often play the dominant role in reducing the chance that an employer could be liable under respondeat superior or other similar employment lawsuits. Several different issues that should be of increased concern to the security supervisor are moonlighting, computer fraud, vehicle use, and of course the routine actions of their subordinates. In these situations the security supervisor should be especially aware and properly versed in preparing and reducing the chance their company could be liable under respondeat superior.

Moonlighting

Often the security supervisor is responsible for the hiring of subordinates. Often security agencies look towards off duty police officers for additional recruits. However, the security supervisor should be aware that when hiring a police officer certain legal considerations need to be made. In several states including Tennessee an employer can be held liable for actions that an off duty police officer takes while working for a private firm. Even if the actions are carried out partially in the interests of the municipality. The court in Tennessee decided that private employers may be held liable for an off duty police officers action if…..

1. The officers action was within the scope of the private employment
2. If outside the scope of the employment the action was at the direction of the employer
3. The action was intended to benefit the employer

Basically the security supervisor should understand that by hiring off duty police the supervisor has an increased not decreased chance of liability. Also the security supervisor needs make very clear to any moonlighting staff that they are to only obey what is written in the company policies. The security supervisor also needs to clearly understand that because one of their staff is a police officer that individual shouldn't be given any extra duties beyond the scope of employment or those that are not spelled out in policy. Any actions that the officer takes in interest of the municipality, if ordered by a security supervisor, may result in the employer being liable under respondeat superior (Spain, 2002), (Scarlet, 2001).

Computer Fraud

With more protection officers relying on computer technology to aid them, an increased chance for computer fraud and liability presents itself. A well-prepared security supervisor needs to be aware and up to date on these changes, and the legal considerations to reduce these risks. Courts have ruled that the simple use of an employers Internet access to conduct fraud or engage in wrongdoing can be penalized under respondeat superior. Security officers can accidentally or intentionally commit a wide variety of computer crimes. Often disclosing confidential information or harassing emails can result in an employer being liable under respondeat superior (Bick 2002).

It is often up to the security supervisor to establish computer operating policies and procedures. These policies and procedures are the company's best way to prevent their liability under respondeat superior. A security supervisor should create a thorough and very detailed policy on computer operating procedures. The policy should spell out what is considered appropriate and not appropriate to disclose and write using company computers and email accounts. These policies should also clearly state that any illegal acts are not condoned. It is also the security supervisor's responsibility to see that these policies are practiced, posted, taught, and distributed to all their employees. With a policy that spells out what is and is not accepted the courts will have an easier time deciding if an act was within the scope of employment. A properly implemented computer use policy is one of the security supervisor's best tools against liability under respondeat superior (Bick 2002).

Vehicle Use

Security Officers and vehicles go hand and hand. It would be foolish for any security supervisor to think differently. Employers can be found liable for most vehicle accidents their employees cause under the doctrine of respondeat superior. Under respondeat superior it doesn't even matter if the employer owned the vehicle, as long as the actions that caused the accident were taken under the scope of employment. In most cases the accidents caused are minor, and the employer will be found liable. Cases like those are the reason employers have liability and vehicle insurance.

However, in some cases involving employee neglect for policies or intentional acts, the employer can be relieved of liability under respondeat superior. That is where the security supervisor comes in. It is up to the security supervisor to establish thorough and detailed vehicle operating policies, and procedures. If these policies are clear enough to show that an act was outside the realm of employment, or not authorized the employer could not be found liable. The security supervisor's responsibilities don't end there. The policies must be kept up to date, and the security supervisor must see to it that only employees trained and authorized should be operating vehicles while on the job (Business Owners Toolkit 2003).

Security supervisors can reduce lawsuits by the implementation of clear and concise policies. Also since accidents on the job do happen, proper training and testing security supervisors can often reduce the amount of accidents that the employer would be found liable for. Security supervisors can play a substantive role in reducing these small but yet expensive liability cases.

Routine Activities of Subordinates

As stated earlier, the security profession by itself is vulnerable to liability. This is just the nature of the industry. Security officers deal with a wide variety of situations that require use of force, confrontation, and often deal with an individuals civil rights. The security profession is prone to legal scrutiny and lawsuits. The security supervisor can be the company's best risk management tool for reducing the company's liability under respondeat superior. The three biggest things a security supervisor can do to reduce the chance of employer liability are create thorough policies and procedures, properly train all employees, and monitor employees to look for warning signs of inappropriate conduct (IFPO 1999).

Policies and procedures
The security supervisor should take an active role in considering legal conditions when creating policies. A well created policy clearly spells out what actions are authorized and what actions are not authorized. Policies are often a security supervisor's best weapon against liability. A well-written policy can make a substantial impact in court as to whether an action is deemed to be within the scope of employment. Lawsuits can be expensive; the security supervisor's policies help to reduce the employer's risk of these time and money losses.

Training
Proper training alone will not protect an employer from liability under respondeat superior. However, if the security supervisor sets up a proper training program it could reduce the amount of incidents the employer would be held liable for. The security supervisor should always see to it that all policies are trained to employees, and employees receive any changes to policies or procedures immediately. If an employee understands what he/she is not allowed to do, incidents resulting in lawsuits are likely to decline.

Monitoring Employees for Warning Signs
This is perhaps where the security supervisor can be the best risk management tool. A security supervisor who monitors employees to see they follow all policies and procedures can seriously reduce the risk of liability. A security supervisor should always see to it that all subordinates follow company policies to the letter. When employees break policies, employees cause lawsuits. The security supervisor should act on any report or incident in which a subordinate hasn't followed company policy. The security supervisor has to make certain everyone is following policies. An employee who is constantly breaking procedures is a liability waiting to happen. Security Supervisors need to watch for these employees and see to it they follow policies, and are retrained in policies. If a subordinate is constantly violating procedures the security supervisor should sit down with the employee and explain that if these actions continue the subordinate will have to be terminated. This is one area in which a security supervisor cannot vacillate.

Conclusion

The security supervisor should be well versed in the legal aspects of his/her profession, and all liabilities that hold the employer liable for employee actions. The security supervisor should know and understand the doctrine of respondeat superior, and all the instances it applies to. In addition, a security supervisor should be aware of the certain circumstances in which a greater risk of liability presents itself. The security supervisor should know that they are the best tool a company has for reducing the number of lawsuits the company can face, and because of this take extra care in creating and implementing thorough policies and procedures. A security supervisor's ability to implement training and monitor employees is his/her second best weapon to protect the employer from lawsuits. Security supervisors play an invaluable role in preventing lawsuits, and should always uphold policies and provide proper training to reduce respondeat superior liability.

Bibliography

1. Clarkson, Cross, Jentz, Miller, (2001), West's Business Law Eighth Edition, United States of America, West's Legal Studies in Business.

2. Spain, M. Norman, (September/October 2002), Liability for Police Working Security, Loss Prevention.

3. International Foundation of Protection Officers (IFPO), (1999), Security Supervision and Practice of Asset Protection. United States of America, Butterworth and Heinemann.

4. Business Owners Toolkit, (March 18, 2003) Respondeat Superior Liability. Retrieved on April 23, 2003 from World Wide Web. www.toolkit.cch.com/text/PO4_7335.asp

5. Bick, Jonathan, (August 26,2002), Respondeat Superior Applies to Online Activity; Internet-use Policies are Critical to Protect Employers From Employees' Illegal Internet Acts. New Jersey Law Journal. v169, p28 (2)

6. Scarlet, Thomas, (April 2001), Private Employers of Off Duty Police May Be Liable in Tennessee. Trial. p92.

7. Nowak, Jeffery, (March 1999), Employer Liability for Employee Online Acts. Federal Communications Law Journal. v51 p467.

8. Gaal, White, (2002), Recent Developments in the Employment Torts of Hiring, Retention, and Supervision. American Bar Association. Retrieved from the World Wide Web on April 23, 2003. www.bnabooks.com/ababna/rnr/2002/hiring.doc

9. Sherry, John. (August 1995), Employer Liability for GM's Sexual Harassment: A Recurring Workplace Problem. Cornell Hotel & Restaurant Administration Quarterly. V36 p16.

10. Minyard Food Stores, Inc. vs. Brenda Goodman, (August 17, 2002) Supreme Court of Texas. Security Management Online, Retrieved from the World Wide Web on April 23, 2003. www.asis.com

11. Howie, Shapero, (2002), Pre-Employment Criminal Background Checks: Why Employers Should Look Before They Leap. Employee Relations Law Journal. v28 p63

Bio Sketch

Stephen T. Davis is a senior criminal justice student at York College of Pennsylvania. Stephen is the president of the Alpha Zeta Chapter of Phi Sigma Pi, National Honors Fraternity, and the vice president of the Pre- Law society. After he receives his undergraduate's degree, Stephen expects to further his education in law school.