Employer Liability in 2025: When Are You Responsible for Employee Assaults on Public Property?

Imagine this: A customer is walking down the street outside your business when an employee, fresh off a disagreement with a coworker, physically assaults them. Are you, as the employer, liable for the resulting injuries? The answer, unfortunately, isn’t a simple yes or no.

In 2025, employer liability for employee actions, especially assaults on public property, remains a complex and evolving area of law. While employers aren’t automatically responsible for every misdeed of their employees, several legal doctrines can create liability. Understanding these doctrines is crucial to protecting your business and ensuring a safe environment for the public.

Vicarious Liability: When an Employee’s Actions Become Your Responsibility

One of the primary ways an employer can be held liable for an employee’s assault is through vicarious liability. This legal principle, also known as respondeat superior (“Let the superior answer”), holds an employer responsible for the actions of an employee if those actions occur within the scope of their employment.

What does “scope of employment” mean?

This is where things get tricky. Generally, an action falls within the scope of employment if it’s related to the employee’s job duties and is done to further the employer’s business. However, intentional torts like assault are rarely considered within the scope of employment.

Exceptions to the Rule:

Even though assault is an intentional act, employers may face vicarious liability under certain circumstances:

Foreseeability: If the employer knew or should have known of the employee’s violent tendencies, they may be liable. This is especially true if there were prior incidents, complaints, or patterns of concerning behavior [1].
Control: If the employer had control over the setting where the assault occurred or was expected to ensure safety, vicarious liability is more likely to apply [1]. For example, a supervisor assaulting a subordinate during work hours could trigger vicarious liability [1].
Authority: Assaults involving individuals in authority positions (e.g., supervisors, team leads) might indicate a failure in oversight if the employer was aware of the risk but took no action [1].
Facilitation: The American Law Institute (ALI) approved a “Special Rule on Vicarious Liability for Sexual Assault” that endorses a new strict liability tort claim against employers for certain sexual assaults committed by employees against third parties. A factfinder may find an employer vicariously liable for its employee’s sexual assault of a person if the nature or conditions of the employee’s employment creates a reasonably foreseeable risk of sexual assault and the person is particularly vulnerable [2, 3, 5].

Negligent Hiring, Retention, and Supervision: A Breach of Duty

Even if an employee’s assault falls outside the scope of employment, an employer can still be liable under negligence theories. These theories focus on the employer’s actions (or inactions) in hiring, retaining, or supervising the employee.

Negligent Hiring: This applies if the employer hired someone with a history of violence or a clear red flag without adequate screening [1].
Negligent Retention: This applies if an employer continued to employ an individual despite knowing about their violent behavior [1].
Negligent Supervision: This applies if the employer did not adequately oversee the employee’s behavior [1].

To establish negligence, it must be proven that the employer’s failure to exercise reasonable care led to the assault.

The Importance of Policies, Procedures, and a Safe Workplace

Employers are expected to implement anti-violence policies, offer reporting mechanisms, and establish procedures for handling complaints [1]. Lack of a formal policy or an inadequate response to previous reports may indicate negligence [1].

Duty of Care:

Employers have a legal and moral duty of care to protect the health, safety, and well-being of their employees [8]. This includes creating a safe working environment and taking steps to prevent foreseeable harm to others.

Practical Steps to Minimize Liability:

Thorough Background Checks: Conduct thorough background checks on potential employees, especially for positions that involve interaction with the public [15].
Clear Workplace Policies: Implement clear and comprehensive workplace policies prohibiting violence, harassment, and discrimination [1].
Training and Supervision: Provide adequate training and supervision to employees, emphasizing conflict resolution and de-escalation techniques [8].
Reporting Mechanisms: Establish clear reporting mechanisms for employees to report concerns about potential violence or threats [1].
Prompt Action: Take prompt and appropriate action when addressing reports of violence or threats [7].
Security Measures: Implement appropriate security measures to protect employees and the public, such as security cameras or security personnel.
Review Insurance Coverage: Review your insurance coverage to ensure you have adequate protection against potential liability claims.

Emerging Trends and Legislation

Several trends and legislative changes are shaping employer liability in 2025:

Expansion of Vicarious Liability: Some jurisdictions are expanding vicarious liability to hold employers accountable for a wider range of employee misconduct, particularly in cases involving vulnerable victims [2, 3, 4, 5].
Increased Focus on Negligent Hiring: Courts are increasingly scrutinizing employers’ hiring practices, particularly their failure to conduct adequate background checks [15].
New Laws and Regulations: Several states have enacted new laws and regulations related to workplace safety and violence prevention [10, 16, 17, 18, 19, 20, 21]. For example, Virginia House Bill 1730 broadens access for victim recovery and expanding potential liability for Virginia employers [4].

Conclusion

Employer liability for employee assaults on public property is a complex issue with potentially significant financial and reputational consequences. By understanding the legal doctrines that can create liability and taking proactive steps to minimize risk, employers can protect their businesses and ensure a safe environment for their employees and the public.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. If you have specific questions about employer liability, consult with a qualified attorney.