McDonald's Settles Claim Involving Employee Exhibitionist

Submitted by Bob Jacobson on Tue, 04/05/2011 - 08:41

 

McDonald’s Settles Claim Involving Employee Exhibitionist
 
An article by Amy Pavuk appeared last week in the Orlando Sentinel which told of a settlement made by McDonald’s involving a claim made by the family of a 14 year old girl who became a victim of the restaurant’s employee when he exposed and touched himself in front of the girl while in the store. The terms of the settlement were not disclosed.
 
Employee’s Conduct Reprehensible, But Why Is McDonald’s Responsible?
 
There is no doubt that the employee is a troubled individual. I also have no doubt that the teenage girl was traumatized to the extent she and her family claimed. But what is it that makes McDonald’s responsible for an employee’s actions that are well outside the employee’s duties? There is a legal doctrine called Respondiat Superior, a Latin phrase that essentially means that the master is responsible for the negligent acts of his servant, or an employer is responsible for the negligent acts of his employee. Generally, in order for an employer to be responsible for harm caused by an employee, the employee has to be on or about the business of the employer while committing the negligent or harmful act. If an employee acts outside of nature of his employment, the employer is not liable. This is important for one making a claim since the claimant is looking for a “deep pocket” from which to recover any provable damages. An employer is generally in a much better position to pay damages than an employee.
 
In this case, the actions of the employee are totally outside the duties for which the employee was hired. So, why would McDonald’s take responsibility? Two reasons are involved.  First, given the specific conduct of the employee, when litigated, does not bring very favorable publicity to McDonald’s regardless of whether or not they have a valid defense. Second, the claimants’ theory of liability was based on the knowledge McDonald’s should have had in regard to the employee’s criminal background. Had McDonald’s done a more thorough background check, they would have found that this young man had a previous history of arrest for various crimes including sexual assault and indecent exposure. This information would or should have prevented McDonald’s from hiring this young man. McDonald’s claimed that their hiring practices include questioning potential employees about prior criminal acts, but each locally owned restaurant is free to set their own employment policy.  McDonald’s Corp. is not a joint employer.
 
To What Extent Should Employers Screen Prospective Employees?
 
The question then might be raised as to how thorough should a background check be in regard to hiring for positions that involve interaction with the public but are jobs that pay minimal amounts? It would seem obvious that more should be required than taking the prospective employee’s word for it on a job application.  Should they be required to be screened for drugs, be finger printed, submit to a polygraph test, etc.  The process for hiring could become very expensive quickly when considering the added cost of thoroughly processing each and every job applicant. Whatever system McDonald’s had in place, it failed to reveal that this guy should never have been hired.  To a certain extent, every employer takes a risk with every employee hired.  The ultimate question becomes how much does one pay to reasonably reduce the risk of hiring an employee that is likely to cause harm rather than help the business.