Sexual assault by co-worker: Is that covered by workers’ comp?
When you work in a bank, you assume the risk of being injured during a bank robbery. We all get that. But when you work for a cosmetic company, you probably think the worst injury you will experience is a slip and fall … or a bad makeover. Would you ever reasonably expect being raped by a co-worker could arise out of your “employment relationship”?
In this new ruling, a court said an employee who was violently sexually assaulted on company property can sue her employer in court. This case serves as a lesson for all employers: You can’t argue that every on-site employee injury is subject to the exclusive and limited remedies available under state workers’ compensation law. With punitive damages hanging over their heads, employers now have real incentives to protect their employees from bad hires.
Case in Point: When a Virginia cosmetics company hired Nathanial Martin, a registered sex offender, it did not conduct a background check before hiring him, even though it was required to do so by a labor agreement.
A female employee, Betty, complained to her boss that Martin used vulgar language and made unwanted sexual advances towards her, including touching her leg, thigh and groin area. The supervisor scheduled them to work opposite shifts. (Betty said the company had a history of hiring convicted criminals because they were a source of cheap labor.)
Because Betty feared Martin, she usually had a friend escort her to her car after work. One night, she waited for Martin to leave work and then left through another door and went to her car alone. Martin attacked her for 15 minutes in a violent sexual assault.
She sued the company for assault and battery, negligent hiring, negligent retention and punitive damages. The employer tried to get those claims dismissed, arguing that workers’ compensation was her only recourse because her injuries “arose out of her course of employment.”
Ruling: The court said the assault was of a “purely personal nature” and completely unrelated to her employment. Thus, her claim was exempted under the state’s worker’s compensation act. The fact that both people worked together is not enough to evoke the exclusive remedy of workers’ comp. (Hartman v. Mfrs. Distrib. Marking Serv., Inc. W.D. Va., 3/8/13)
3 Lessons Learned … Without Going to Court
- Always conduct background checks. Even if your company is not obligated to conduct background checks as part of a labor agreement, it should do so anyway to ensure the safety of its employees. Otherwise, you never know who you are hiring
- Read the results. In this case, Martin was convicted of aggravated sexual battery of a child under the age of 13 just two years prior to hire. That report would have listed this horrific crime. Believe what you read.
- Changing shifts is not enough. When an employee puts you on notice that a co-worker is making unwanted sexual advances, changing their shifts just gives them new targets to victimize. Instead, take prompt effective action to investigate and discipline—up to and including immediate discharge. Otherwise, you may end up with a negligent retention claim, too.
