The Slap Heard Round the World: Employer liability for third party violence in the workplace

by | Apr 14, 2022 | Current Events |

The goal of any blog, including an employment law blog, is to write something topical. At present, the most topical issue is Chris Rock being slapped by Will Smith at the 2022 Oscar’s. Does this incident present any issue of employment law worth discussing? Yes, it certainly does. The employment issue this raises is the extent to which an employer may be liable when an employee is assaulted by a third party at work.

This issue has been raised before in court cases. For example, in 2012, a family sued the Domino’s pizza chain when their son, a Domino’s driver, was ambushed and killed while making a delivery. In general, an employer is not liable for the criminal acts of third parties. However, on the other hand, employers owe a duty to provide a reasonably safe work environment for employees. Liability in this type of case most likely would turn on whether the employer knew or should have known of the special danger presented in this situation.

The extent of advanced knowledge required to impose liability is not crystal clear. Thus, in the Domino’s case, if Domino’s knew in advance that gang members were waiting to try to ambush and murder its delivery driver and sent him to make the delivery anyway, that would certain seem sufficient to impose liability on Domino’s. However, if it was merely general knowledge in the community that particular neighborhood had more crime than average for the community, but Domino’s management had no specific knowledge of any delivery drivers being victimized, that may not be enough to show Domino’s knew it was sending its driver into unreasonable danger.

Assuming that Chris Rock was hosting the Oscar’s as an employee of the Academy of Motion Picture Arts and Sciences (the “Academy”) (which is not entirely clear, as he may have only been an independent contractor, which distinction is an issue for another blog), then, like in the Domino’s case, the Academy could be civilly liable to Mr. Rock for the assault if the Academy had some advanced knowledge it was putting Mr. Rock in unreasonable danger of being assaulted. For example, if Will Smith had a known history of violently assaulting anyone who made fun of his wife, and if the Academy reviewed Chris Rock’s jokes in advance, saw he had a joke making fun of Will Smith’s wife, and failed to warn him about Will Smith’s violent response to such jokes or put any kind of safeguard in place to protect him from Will Smith after he made the joke, then the Academy could potentially be liable. As a practical matter, it seems unlikely in the Smith-Rock situation, that there would be facts sufficient to hold the Academy liable to Chris Rock for failing to keep him safe from assault by Will Smith. However, every day throughout the country, it is likely there are some employees whose employer is knowingly putting them in unreasonable danger in order to pursue profits over employee safety, and that definitely is a situation where there may be liability.

In any discussion of employer liability for physical injury to an employee, there must be some consideration of workers compensation laws and, in particular, workers compensation exclusivity. The term “exclusivity” indicates that, for most workplace injuries, the employee’s only recourse is to workers compensation benefits (for medical expenses and some degree of wage compensation where appropriate), but the employee cannot sue in civil court or seek damages for pain, suffering, or emotional distress.

There are exceptions to workers compensation exclusivity. Thus, where an employee suffers injury due to an event that is outside the scope of employment, that may fall outside workers compensation exclusivity. Courts have held, for example, that sexual harassment in the workplace falls outside of the scope of employment so that victims of sexual harassment can sue civilly for their pain, suffering and emotional distress, and other compensation, and are not bound by workers compensation exclusivity. In general, intentional assaults would be outside the scope of employment, though there could be exceptions (e.g., some one employed as a boxer’s sparring partner).

Getting back to the Smith-Rock situation, the Academy could also potentially be civilly liable to Chris Rock if the Academy chooses not to hire him to host the 2023 Oscar’s. California Labor Code section 230(e) prohibits an employer from discharging or retaliating against an employee because of his or her status as a victim of crime or abuse, provided that the victim provides notice to employer of the status or the employer has actual knowledge of the status. This means that if the Academy chooses not to hire Chris Rock to host the 2023 Oscar’s specifically because of Will Smith’s slap, Mr. Rock could potentially sue under Labor Code section 230(e) (this, again, assumes Mr. Rock is an employee, not independent contractor, of the Academy.)

Ultimately, the lesson for employees generally (apart from never making jokes about Will Smith’s wife) is that, if you suffer an assault or abuse in the workplace, your employer may be liable to you for your damages. Yes, the assailant may also have liability, but sometimes the employer is the deeper pocket and the assailant may not have money to pay a judgment. Thus, it is often prudent to consult with an employment attorney after such an altercation.