Most employers assume that they are not responsible for the conduct of their off-duty employees. However, under certain circumstances, an employee’s off-duty conduct can be imputed to the employer.

Consider this example: an off-duty security guard stays at the bar for a drink after their shift ends, and an altercation breaks out. The off-duty security guard, believing that they have a duty to act, decides to assist other members of security to stop the fight. Unfortunately, during the fog of the altercation, the unruly patron is seriously injured at the hands of the off-duty employee. Since the act of breaking up an altercation is arguably foreseeable and is for the benefit of the employer, any negligence on the part of the off-duty security guard could be imputed to the employer.

To help the business owner potentially prevent and avoid these situations, we have included some guidance to navigate this thorny area of the law. By implementing these protective measures, you will likely be in a much better position to defend these types of claims if they arise.

• As with any area of your business, it is important that you communicate your expectations to your employees. If you do not, they will be left without a guiding compass when problematic situations arise.
• It is imperative that you explain to every employee when they are hired that they are not allowed to perform any work-related activities when they are off the clock. If an incident does arise, the off-duty employees should be instructed to alert a member of management or security. Once the incident has been resolved, the employee can then provide the proper authorities with their observations and an account of the events that transpired. Off-duty employees should never physically or verbally interject themselves into an altercation.
• Employees should be instructed to clock out when their shift is over. It is important to have a record keeping system that shows when the employee has clocked in or out. This record could be vital if there is any dispute at the time the injured party asserts a claim.
• Off-duty employees still in uniform on the premises can cause confusion should an incident occur. If off-duty employees choose to remain on the premises as patrons, they should be instructed to change out of their work uniform to avoid the appearance that the off-duty employee is acting on your behalf.
• Most importantly, the business should have a surveillance system in place to capture any incident that may arise. A copy of the video should be kept and not recorded over, in case a claim is made. If footage is given to the police, a copy should still be maintained by the business owner.

Find an ICC agent in your area by visiting our website, www.ilcasco.com.

This story appeared in the July 2021 edition of Pennsylvania Beverage Media, the official monthly magazine of the Pennsylvania Licensed Beverage and Tavern Association. It was written by Nick Crosby, Esq., Litigation Counsel, of the Illinois Casualty Company.

Qualifying Members of the Pennsylvania Licensed Beverage and Tavern Association can save up to 10% on their businessowners and liquor liability insurance with Illinois Casualty Company.