Everyone likes to have a work environment where people enjoy themselves. Too much “fun,” however, can lead to liability. How much fun is too much fun?
Fun on Disciplinary Leave
A corrections officer was disciplined and assigned to stay at home, remain available by telephone at all times, and perform no departmental work during his normal working hours unless specifically assigned by his supervisor. While under the workplace equivalent of home detention, he sawed off three fingers while building a drawer for his personal workbench. He subsequently applied for workers’ compensation, since he was being paid to stay home and the injury occurred during his normal working hours.
He initially was awarded compensation, but the trial court reversed, holding that he was not acting in the course of his employment when he amputated his fingers. The Court of Appeals agreed and held that he was not covered by workers’ compensation because he was acting for his personal benefit at the time of the injury and the activity was more than an incidental, minor deviation from his normal work activities.1
Horseplay at Work
Newby, an employee in a milling and woodworking firm, sued a co-worker, Gerry, after he approached Newby from behind, gave a loud yell and grabbed him by the ankles, causing Newby to fall from a scaffold. Newby claimed that Gerry, who was a supervisor, intentionally assaulted him.
The trial court granted summary judgment, holding that the co-worker was immune from liability under the Industrial Insurance Act, RCW Title 51. The Court of Appeals reversed, holding:
No justification exists for allowing an intentional assault on a fellow employee under the claim that the act was done in the course of employment. ... [T]he workers’ compensation act does not preclude recovery under the act for such an injury incurred on the job and recovery also against the wrongdoer over and above the limits of the act, subject to recoupment by the employer. 2
The case was remanded for trial because the issue of whether Gerry intended to injure Newby was unresolved. 3 On the other hand, the Court of Appeals has recognized in dicta that other courts have found coverage for “horseplay” or “lull in work” injuries (presumably, where the conduct was not intentional) “because such conduct is incidental to the work and to be expected by the employer.” 4
Office Party Drinking
At a banquet to honor long-term employees of Kaiser Aluminum and Chemical Corporation, a Kaiser employee had at least 10 hard-liquor drinks in less than two hours. He continued to drink at a slower pace for another two hours before leaving the banquet to head for work on the night shift. A motorcyclist involved in a subsequent accident with the employee, who was driving the wrong way on a freeway off-ramp, sued both Kaiser and the Spokane Red Lion Inn, where the banquet was held.
Attendance at the banquet was voluntary. Drinks were all served by Red Lion employees and paid for by Kaiser. The banquet order stated that the servers were to “keep the glasses filled.” The Supreme Court reversed an order of summary judgment that had been upheld by the Court of Appeals on the grounds that there was a fact issue regarding Kaiser’s liability in light of a police officer’s testimony that the employee was “obviously intoxicated” at the scene of the accident.
The main issues presented by the case were whether the employee was “obviously intoxicated” when furnished alcohol and whether Kaiser or the Red Lion knew or should have known, in the exercise of reasonable care, that he was intoxicated. The court further held that “the fact that Kaiser management was present suggests that Kaiser could have ordered service to be denied. This evidence raises a genuine issue of material fact as to whether ... Kaiser ‘furnished’ the alcohol.” 5
Introduction to Sex and Drugs
The father of a 15-year-old employee sued McDonald’s Corporation, the assistant manager and the franchise owner after the assistant manager (Maybin) supplied the girl with free food, alcohol and drugs, and “kissed her openly in the workplace.” 6 Maybin also took her to a hotel and had sex with her, after which she ran away from home to be with Maybin.
Her parents immediately terminated her employment at McDonald’s, and her father went to the restaurant and threatened Maybin with a fire poker. The girl later reconciled with her family.
Citing the franchise agreement, the Court of Appeals upheld summary judgment in favor of McDonald’s due to the lack of an actual or apparent principal-agency relationship between McDonald’s and the franchisee. 7 The Court of Appeals decision does not indicate the outcome regarding the claims against the franchisee that employed the girl. The opinion does note, however, that Maybin had an extensive criminal history, at least some of which was known to the franchisee, including a bank robbery, robbery of an airport shuttle where he worked, robbery of a grocery store, possession of marijuana and drug paraphernalia, and theft.
The above cases illustrate that employees can, and do, go overboard with “fun” while working and that one person’s “fun” can cause great harm to others. The message? If you are an employer, keep an eye on your employees, even when they are having fun, and run a background check before hiring.
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Karen Sutherland is the chair of the Employment & Labor Law Practice Group of Ogden Murphy Wallace, PLLC, and chair of the Bar Bulletin Committee. Her idea of “fun at work” is to write articles pro bono. Sutherland can be reached at ksutherland@omwlaw.com.
- 1 Department of Labor & Industries v. Johnson, 84 Wn. App. 275, 280, 928 P.2d 1138 (1996).
- 2 Newby v. Gerry, 38 Wn. App. 812, 823, 690 P.2d 603 (1984).
- 3 Id.
- 4 Department of Labor & Industries v. Johnson, 84 Wn. App. at 280 n.1.
- 5 Dickinson v. Edwards, 105 Wn.2d 457, 466, 716 P.2d 814 (1986).
- 6 Street v. Maybin, 130 Wn. App. 94, 97, 121 P.3d 1210 (2005)
- 7 Id. at 98, 100.
