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employment law issues / leave time / employee liability for own acts August 10, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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employment law issues / leave time / employee liability for own acts
August 10, 2017
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employment law issues / leave time / employee liability for own acts
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Ken: 
    Question I had an employee come to me last week to inform me he is going out for 8 weeks for elective surgery, providing only 6 days notice for the 8 week leave. He further told me that it could be done in September but he and his family want to get it done sooner.  I asked him to please consider the hardship he is placing on the business and co-workers and to schedule for September. He did not consider my request.       He has signed your employee contract and is a full time hourly Installer. 
    Being short at this time of year is placing a great hardship on the business, I will need to hire someone to fill his position at least temporally, what is my obligation to hold his spot for him when he is back in 8 weeks?      My concern is finding a qualified Installer who would take a 8 week position. 
    Thank you for your opinion.
Best,
Tim
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Response
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    I am passing this question along to K&K's Employment Law Department, headed by Jennifer Kirschenbaum,Esq. Here is her response:
    This is a great question for the newsletter because it comes up a lot. Before I can provide a specific answer for you, I need to know more about your company and circumstances of the employee – which is why you probably need a real consult (on the clock) for the right answer. But, I’ll use the newsletter to show you what I need to consider to properly advise you on the circumstances. I need to know if you qualify as an employer subject to the Family Medical Leave Act – do you employ 50 or more people? We can discuss what “employ” means, v. retain 1099s and what “50” means – if you have a revolving door environment and you’re on the cusp.  Next, I need to know (even though you indicated the surgery is elective), is the employee going in for a face lift or fixing a partial ACL tear he incurred while on the job? Both could be “elective”, but it matters.
    I also need to know if the employee qualifies or will qualify post-surgery as “disabled” under Federal or State law.  Each State has its own rules you have to follow in treatment of employees and their rights.             Here in NY, the Executive Law has its own definitions of disability and authorizes employees to take action against an employer if they are terminated or treated disparately based on a protected class.  So, what state/county are you operating in?
    The notice provided is another issue – and depending on what your answers are to the above will vary the advice we can give on how to handle. Let’s say this is more then you wanted to consider and you just want to fire the guy for being a poor citizen and giving inadequate notice – if you answer in the affirmative to having more than 50 employees, you could be inviting tremendous exposure and aggravation for terminating.  If you have less than 50, but a State law applies that gives the employee protections and rights against  you,  you may have just invited a complaint to the overseeing government agency or a lawsuit.  All depends on the circumstances. You did the right thing asking before acting and it would be a good idea to engage us before taking any action that may lead to litigation.
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employee liability for own acts
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Ken,
    Thank you for your great news letters!
    Can an employee / technician be held liable for their actions or inaction?
    Two parts to this question,
1. Can an employee be responsible and held liable for what he does while representing the company they work for if they do something to someone or the building they are working in?
2. Can an employee / technician be held responsible or liable for something they do wrong or fail to do as relates to the system they are working on? 
Examples :
    There are many scenarios and reasons why something may happen.  Can we, as the employer, hold them responsible, and if missed by the company and there is a loss, can the AHJ or someone suing hold them responsible?
    If the tech was named in a law suit would the companies insurance policy cover their defense and liability or are they on their own?
Thank you,
Jeff
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Response
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    Though there may be some exception, the general rule is that the employer can not sue or hold the employee liable for the employee's mistakes [negligence] in the employees performance of his or her work.  In fact, it's the employer who is responsible for the acts of the employee when those acts are performed in furtherance of the employer's work.  An employer will not be held vicariously liable if the employee is acting outside the scope of employment. i.e. decides to rob a deli while on lunch break.
    An employer's remedy for an employee who screws up is to fire the employee.  Even then, be prepared to pay a premium on your unemployment insurance because the employee discharged just because of mistakes or incompetence will likely be entitled to unemployment benefits.  
    If you get sued because of your employee's mistake your general liability policy with E&O benefits will cover both you and the employee.  Any insurance brokers out there willing to confirm or correct me?  Let's hear from you.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com