In the US, are employers liable for torts caused by their employees working from home

Question

I WFH and today I had a meeting that ran way over time and I had to pick up my kid from school. I didn't want to miss the rest of the discussion and wanted to push back on one issue, so threw my laptop on the front seat, turned on the hotspot and continued the meeting(and before anyone comments, no I didn't use it while driving, it was hands free with a headset, I just don't have Teams on my phone). And this is not uncommon with my team. Pre Covid, we'd do it occasionally, when you're stuck in unexpected traffic and need to join an important morning meeting, but it's become a lot more common.

On the way back, I started wondering: if I hit somebody, would my employer be liable, since I was technically "at work" at the time of the accident? Or is it so out of scope of my responsibilities that it'd be all on me.

Answer 1

Vicarious liability generally needs to pass the so-called "close connection" test, meaning that the act in question must be sufficiently related to the conduct that the employer has actually employed you to do. For example, a truck driver who hits another car on their delivery route almost certainly does so in the normal, expected, and required duty they have of driving a truck, so their employer would likely be vicariously liable.

Here, driving your car is not one of your job duties or in any way connected to your responsibilities or the company's expectations. The act which make you liable really has nothing to do with any aspect of your job - nobody told or expected you to drive (and indeed they'd probably prefer you weren't driving during meetings), so I would expect this to fail the "close connection" test.

Your employer does not automatically become vicariously liable for any and all things you might do while you happen to be on a work call. As another example, consider that a construction company might be vicariously liable if their employee runs someone over with a bulldozer on the job. Your desk job employer would not be liable if you decided to take a joyride on a bulldozer during a call and injured someone in the process.

Answer 2

I can't find anything on point in the UK, but I suspect that here the employer might find themselves liable under health and safety law, on the grounds that the company is forcing its employees to act in an unsafe way. One could argue that in your circumstances picking up your children was non-negotiable and you had planned appropriately, but the overrunning meeting forced you to choose between neglecting your work (attendance was effectively mandatory) or driving at increased risk. The fact that this is generally tolerated by the company would be an important point: it wasn't just you taking a risk by yourself.

The company's defence could be that they were unaware of this trend and/or their existing policy documents mentioned that this should not be done. Also in the web page I linked to it says that occasional use of hands-free for calls is acceptable. They might also argue that you weren't driving as part of your job, but AIUI that isn't particularly relevant given the other facts.

Answer 3

Probably

australia

For an employer to be held liable for the tort of an employee the common law requires that the tortious act of the employee be committed in the course or scope of the employment.

It is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment … the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment”

CCIG INVESTMENTS PTY LTD (ABN 57 602 889 145) v SCHOKMAN [2023] HCA 21

Participation in the meeting is within the scope of your employment, so any tort you commit while doing that is in the course of your employment, and the employer is vicariously liable. If the employer could demonstrate that you have been explicitly told/trained not to drive while holding meetings illegally on your laptop, then they have a defence that that specific combination was not in the course of your employment - i.e. having meetings is, having meetings on your laptop while driving isn't.

In general, illegality by the employee does not break the vicarious liability; after all, torts are illegal. Even criminality does not necessarily break it; employers have been held vicariously liable for sexual abuse committed by employees if the employment could provide circumstances for the commission of the offence Prince Alfred College Incorporated v. ADC [2016] HCA 37.

While most vicarious liability claims are common law based, there are some statutory provisions that narrow or broaden the scope.

For example, under s 106 of the Sex Discrimination Act 1984 (Cth), an employer is liable for the acts of its employees ‘in connection with their employment’ unless the employer establishes it took all reasonable steps to prevent the employee engaging in that conduct.

The phrase ‘in connection with their employment’ is broad – broader, in fact, than ‘in the course of their employment’.

Answer 4

germany

"Work From Home" does not mean "work from whereever, you decide". It means "from home", literally. Where "home" is, is written down in your (mandatory) written contract. Because that is your place of work, it determines which federal state you work in which in turn determines, among a million other details, obvious differences like taxes and public holidays. You cannot just decide that you'd like to have the day off and drive to another federal state where they have a public holidy today. Work from home is from home. And nowhere else.

While no employer in their right mind would double check that, because as long you you do the job, why would they expend extra resources on it, if it comes to inconvenience or even costs, you can be pretty sure they will hold you to your contract. Especially insurances will sniff out every little thing that isn't in their policy and you being in your private car on a private trip while you should be in your office at home at your desk according to your contract is not going to pass any test.

If you are travelling for work, either to work, from work, between workplaces, or between workplace and customers, you are covered by various laws and insurances. But leaving your designated workplace, against contract and policy, for a private trip in your private car, is something you would probably get fired or at least reprimanded for, on top of whatever other suit you can expect.