Business Law (part 27)

Employer and Employee Relations (part B)

 by

 Charles Lamson

 Common Law Defenses of the Employer

Under the common law, when an injured employee sues the employer, the employer could raise the following defenses:

1. The employee's contributory negligence
2. The act of a fellow servant
3. A risk assumed by the employee

Contributory Negligence Rule

The contributory negligence rule states that an employer can escape liability for breach of duty if it can be established that the employee's own negligence contributed to the accident. An employee who could have avoided the injury by the exercise of due diligence has no right to collect damages from the employer.

The Fellow Servant Rule

The fellow servant rule allows an employer to avoid liability by proving the injury was caused by a fellow servant. A fellow servant is an employee who has the same status as another worker and works with that employee. This rule has been abrogated or so severely limited that it very rarely has any significance now.

Assumption of Risk Rule

Every type of employment in industry has some normal risks. The assumption of risk rule states that employees assume these normal risks by voluntarily accepting employment. Therefore, if the injury results from the hazardous nature of the job, the employer cannot be held liable.

Statutory Modification of Common Law

The rules of the common law have been greatly altered by the enactment of laws modifying an employer's defenses when sued by an employee, laws providing for workers compensation, and the Occupational Safety and Health Act.

Modification of Common Law Defenses

Statutes have modified the defenses an employer may use when an employee sues for damages. For example, the Federal Employers Liability Act and the Federal Safety Appliance Act apply to common carriers engaged in interstate commerce. A plaintiff suing under these laws must still bring an action in court and prove negligence by the employer or other employees. However, winning the case is easier because of limits on the employer's defenses. An employer has liability even if the employee is contributorily negligent. However, such negligence may reduce the amount of damages. Many states have also modified the common law defenses of employers of employees engaged in hazardous types of work.

Workers Compensation

Every state has adopted workers compensation statutes that apply to certain industries or businesses. These statutes allow an employee, or certain relatives of the deceased employee time to recover damages for injury to or death of the employee. They may recover whenever the injury arose within the course of the employee's work from a risk involved in that work. An injured party receives compensation without regard to whether the employer or the employee was negligent. Generally no compensation results for a willfully self-inflicted injury or an injury sustained while intoxicated. However, the employer has the burden of proving the injury was intentional and self-inflicted. The law limits the amount of recovery and sets it in accordance with a prescribed schedule. 

Workers compensation laws generally allow recovery for accident inflicted injuries and occupational diseases. Some states limit compensation for occupational diseases to the specified by name in the statue. These diseases include silicosis, lead poisoning, or injury to health from radioactivity. Other states compensate for any disease arising from the occupation.

Whether based on the common law or an employer's liability statute, damages actions are tried in court. Workers' compensation proceedings differ because a special administrative agency or workers' compensation board hears them. However, either party may appeal the agency or board decision to the appropriate court of law.

Workers' compensation statutes do not bar an employee from suing another employee for the injury.

Occupational Safety and Health Act

In 1970, the federal government enacted the Williams-Steiger Occupational Safety and Health Act to ensure safe and healthful working conditions. This federal law applies to every employer engaged in a business affecting interstate commerce except governments. The Occupational Safety and Health Administration (OSHA) administers the act and issues standards with which employers and employees must comply. In order to ensure compliance with the standards, OSHA carries out job site inspections. Employers must maintain detailed records of work-related deaths, injuries, and illnesses. The act provides fines for violations, including penalties of up to $1,000 per day for failure to correct violations within the allotted time. 

*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., PGS. 334-336*

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