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Are Employers Liable for Employee Off-Duty Crimes?

Sept. 1, 2022, 8:00 AM

This past summer, a Dallas County, Texas jury slapped Charter Communications with $7.375 billion in compensatory and punitive damages. The Goff v. Holden & Charter Communications, LLC verdict is exceptional due to its size, and because it penalized Charter for an employee’s criminal conduct while off-duty.

Generally, an employer can be held liable for an employee’s misconduct within the course and scope of their work. Or, negligence can apply when the employer unreasonably failed to prevent wrongdoing, even if it occurred while the employee was off the clock.

The reasons that Charter was held liable for negligence provide important lessons for all employers on preventing workplace violence, especially if employees visit customers in their homes.

In Dec. 2019, Roy Holden, a Charter cable technician, visited 84-year-old Betty Thomas for a service call. The next day, while off-duty, Holden drove a company van back to her home, where he robbed and murdered her. He was arrested, pleaded guilty, and is serving life in prison. Thomas’ family sued Charter, alleging that gross negligence caused her death.

Charter seemed well-positioned to defend itself—after all, Holden wasn’t on the job when he committed his crimes, the company had run a criminal background check, and maintained a workplace violence prevention program. But as the trial proceeded this past June and July, the plaintiffs presented evidence that Charter failed to take critical steps that would have shielded it from liability—and, far more important, might have prevented this tragedy.

When Charter hired Holden, it failed to verify his prior employment history. Company policy relied on self-reported information rather than formal employment checks. While Charter did run a criminal background check on Holden, and found nothing, the testimony at trial showed that industry standards for this kind of position required both employment verification and a criminal background check.

If Charter had applied that standard, it would have learned that Holden was fired from other jobs for misconduct that included forgery, disregarding supervisor instructions, and unprofessional workplace conduct. He also omitted certain jobs from his application. By failing to conduct adequate due diligence, Charter made an unfortunate employment decision and exposed itself to massive liability.

Employers should protect themselves against such liability with robust background check processes that meet or exceed industry standards. This is especially important when employees visit customers where they are most vulnerable—in their homes. Human resources and corporate security should work together to ensure that background checks request the necessary information and are completed quickly—and that reports are acted on when they reveal problems.

Employers should use a reputable background check vendor that is tailored to the unique risks of their business. For more guidance, employers can refer to the standards for pre-employment background screening and vetting published by ASIS International, a global community of security practitioners.

The second of Charter’s critical mistakes came after it hired Holden. The plaintiffs showed that in the days leading up to Thomas’s death, the company failed to act on a series of red flags before sending Holden into customers’ homes.

Nine days before the murder, Holden begged a supervisor for money. The supervisor refused the request, but did not report it. Eight days before the murder, Holden broke down at work after his wife left him. And just a few days before the murder, he misused a company van, but Charter failed to learn about and stop that misuse.

The plaintiffs presented evidence showing that Charter should have identified Holden as a potential threat based on these red flags, as shown by industry standards and its own policies.

For example, the FBI has said that marriage breakups, financial problems, and emotional disturbances are all risk factors for potential workplace violence. If Charter had recognized these risk factors, removed Holden from the field, and removed his access to the van, it might have prevented Thomas’ death.

Charter took the positive step of creating a workplace violence prevention training program, but the plaintiffs claimed the company failed to act on Holden’s warning signs.

Employees were supposed to report such red flags to security or HR as soon as possible for evaluation and action, but that didn’t happen. According to Charter witnesses, managers had not trained employees on how to recognize workplace violence or had not themselves been trained to identify warning signs.

To avoid such risk, HR departments and security teams should implement protocols and training to prevent, address, and report potential workplace violence.

Employer programs—which should be carefully designed to be non-discriminatory and to handle investigations sensitively—should ensure that, when red-flag behavior is identified, it is quickly investigated, the risk is evaluated, and appropriate actions are considered. These actions can include employee discipline or a referral to an employee assistance program (EAP).

Employers should also be aware of, and fully consider, the industry standards that exist for preventing violence at work. For resources, employers can consult the American National Standards Institute (ANSI), which has published a Workplace Violence Prevention and Intervention guide describing protocols to help identify and stop threatening or violent behavior.

Given the evidence presented about Charter’s mistakes and the brutality of the crime against Thomas, it’s easy to see how the jury could have been inflamed and outraged enough to award a nine-digit verdict.

Employers should take notice and evaluate their own background check and workplace violence prevention programs to see if they pass muster. If not, it’s time to act. The lives of employees and customers might just depend on it.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Jason Knott, partner, Zuckerman Spaeder, has nearly two decades of experience as a litigator and employment lawyer. He also recently served as chief people officer for Afiniti, a multinational artificial intelligence and data technology company.