Vicarious Liability: When Employers are Responsible for Employee Conduct

Vicarious Liability -- employment contract and negotiations

Vicarious liability involves placing the liability for one’s actions upon another person. Where an employment relationship exists, employers can be held vicariously liable for the actions of their employees. This is an implied term in employment contracts.

What are the General Parameters?

The presence of an employment relationship limits the employer’s vicarious liability by confining it to the duration of the employment relationship. This prevents the employer from being liable for employee actions committed prior to entering into the employment relationship, as well as for any actions committed once the employment relationship has ended. Furthermore, an employer is only liable for those actions which occur while the employee is acting in the course of their employment.

What about Off-Duty Conduct?

At times, vicarious liability may extend beyond the working context and include off-duty conduct. One example can be seen in the case of Cimpean v. Payton [2008] O.J. No. 2665, in which an NBA team, the Milwaukee Bucks, and the NBA were held vicariously liable for the actions of three players who assaulted the individuals in an adult entertainment lounge. The judgment stated the following:

“…the employment relationship between the Bucks and each player involved more than just playing basketball. It may well have included reputational and image issues which may be affected by some forms of off court conduct, and which may damage the team, the franchise and its financial position.”

As this case illustrates, determining what is classified as “acting in the course of employment” cannot be universally defined. Each case is depends on its own unique facts.

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