I hired a company to perform some home improvement projects to my home over the summer. I suspected that one of the crew members misplaced or stole some items from my home, and he was later fired. Is the company responsible for this?
· More likely than not, the company is responsible
· Need to know what sort of home improvement projects, whether the items were misplaced or stolen, and whether the crew member as an independent contractor or an employee.
Why would it matter if the property was stolen compared to being accidentally destroyed?
· It may not make a difference, the reasons why the company could be responsible are different depending on what happened
· If it was an accident, the company is going to be responsible
· Important to know, however, if this individual was an independent contractor or employee
· If the crew member stole the property, we need to know whether the employee's conduct was foreseeable
· If the crew member was in prison for theft, the conduct was foreseeable.
· And if the employer performed some level of due diligence and identified that the crew member had a criminal record, the employer would also have a duty to supervise this employee to ensure that the foreseeable act of theft did not occur
You mentioned the issue about the employee and independent contractor is there a distinction between the two?
· Could spend a great amount of time discussing this
· Presumption of employee over independent contractor
· Twenty-factor test
· The test measures the employer's right of control
· And the company's liability to the home owner could depend on whether this crew member was an employee or an independent contractor
· Liability will depend on whether individual is an employee of independent contractor.
· Employers are generally not liable for acts of independent contractors.
· So hiring individuals as independent contractors rather than employees is one way for individuals or businesses to lower their potential liability in situations like this.
Can an employer ever be liable for the acts of an independent contractor?
· Yes, in limited circumstances
· Employer must retain control over work of independent contractor