Bad Situation, But at Least the Employer is NOT to Blame
BLR through SHRM reports a California court actually sided with an employer for once.
The case, Flores v. AutoZone West, Inc. (Cal. Court of Appeals Dist. 4, No. G038322 (2008)) arose out of an altercation at an AutoZone store in Orange County. A customer was at the store to buy motor oil when he whistled at an employee to get his attention. The employee, a sales manager, took the whistling as an insult. After a verbal exchange hit the customer with a metal pipe.
Now let me break from this story for a moment. About 25 years ago I pulled into a gas station and waited to be served, which was before self-service. The attendant continued to chat with a buddy for what seemed like eternity, but probably was about 5-10 seconds. I whistled at him to get his attention. It made him angry. I apologized, but also told him I did not like waiting while he chatted with his friend. I later reported his anger to his boss. Years later I had my car serviced at a local dealership and it came back with a totally unrelated problem. When I picked it up I noticed the gas station attendant now worked at the dealership. Now you decide, was that just a coincidence? Apparently most of us do not like to be whistled at like a dog.
Now back to AutoZone. The customer filed a lawsuit against AutoZone to hold the company liable for his injuries on the grounds that the sales manager was acting within the scope of his employment when he hit the customer. The customer also contended that AutoZone was negligent in hiring, retaining, and training the employee, in light of his allegedly violent background. In particular, the sales manager had a juvenile delinquency record for attempted murder, although AutoZone was unaware of it. AutoZone had previously given the manager a written warning for raising his voice to a customer.
The appellate court ruled the case can proceed. Under California law, an employer is vicariously liable for its employees’ wrongdoings that are committed within the scope of the employment, and an employee’s willful, malicious, and even criminal acts may fall within the employment scope. AutoZone argued that the employee’s attack on the customer, who was an “an older and smaller gentleman,” was “perverse” and far outside the bounds of his employment. But the court said that an employee’s violent response to a customer interaction could be a predictable risk of retail employment, and it was up to a jury to decide that question in this case.
AutoZone’s appeal won in the appeals court, which rejected the negligence accusations. According to the court, AutoZone had no duty to do a more-thorough background check before hiring the employee—and even had the company done more, it still might not have uncovered the juvenile record. What’s more, the prior incident in which the manager raised his voice with a customer wasn’t a red flag that he might be violent.
How to Avoid Liability
Do a thorough background check (learn more) that includes a criminal and civil court check in the county the individual resides in addition to the largest adjacent county. You cannot make a hiring decision based on the civil court check, but you sure want to know if the individual is suing neighbors or past employers, or they are suing him.
Monitor performance AND conduct of all employees. Document problems and good works. Consider problems carefully. AutoZone won the lawsuit, but it cost them tens of thousands of dollars to do so. It can be better to terminate an employee rather than risk a serious problem. Sometimes the decisions you have to make as the boss are just tough.
Make this year your best year ever.
