Newsletter

Safe at Work: Staying Compliant Amidst a Changing Workplace

By Ashley Sykora, Associate, Liebert Cassidy Whitmore

Originally published on June 7, 2022. Reprinted with permission from Liebert Cassidy Whitmore.

The past two years have challenged employers’ resilience and adaptability in our rapidly-changing workplaces. One such change was the explosion of remote work, which swept across workplaces throughout the country and in some cases, landed a permanent position at the hiring table. As employers adapt to the increasing prevalence of remote work, one important question surfaces: What is an employer’s duty to keep the workplace safe for remote workers?

The recent decision in Colonial Van v. Superior Court may help answer that question.

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In that case, wife Carol Holaday and her husband Jim Willcoxson were both employed by Colonial Van & Storage Inc. Ms. Holaday generally worked in her company’s Fresno office, however, she was authorized to work from home at her discretion. She frequently had her fellow co-workers visit her home for both social and work-related reasons. Carol Holaday’s son, Kyle, also resided with his mother and Willcoxson. Kyle was a war veteran suffering from PTSD. He also had a history of misusing firearms and kept loaded guns around the house.

On the evening of March 24, Holaday and Willcoxson invited Crystal Dominguez and Rachel Schindler, who also brought her 5-month-old child, to their house. Dominguez was a fellow Colonial employee. Schindler worked for a different moving company that frequently worked with Colonial; she only knew Holaday and Willcoxson in a professional setting. Kyle was also present that evening. While everyone was in the living room, Kyle shot and killed Willcoxson and wounded Holaday, Schindler, and Dominguez.

Dominguez and Schindler filed lawsuits against both Holaday and Colonial. Amongst other things, they alleged that Colonial was vicariously liable for Holaday’s misconduct pursuant to the doctrine of respondeat superior. After Colonial’s summary judgment motion was denied by the trial court, Colonial requested a writ of mandate from the Second District Court of Appeal to vacate the decision. The court was faced with the following question: Does an employer have a duty to ensure that off-site work locations are safe from third-party criminal conduct?

The court found that Colonial did not owe Dominguez nor Schindler a duty to protect, because Colonial did not own, possess, or control the home where the incident happened. Colonial did not set specific hours for the employees to work in the home, designate the home as a business location for insurance or tax purposes, nor list the home as an extension of the business on business documents. The court further held that although Colonial derived a commercial benefit from the home, by nature of Holaday working from home at times, it was still insufficient to create a duty to protect.

The court also found that Colonial did not owe Dominguez a duty to protect based on the employer-employee relationship. Again, the court emphasized that Colonial did not have control over the Holaday’s home since it was a private residence. Moreover Colonial did not have any control over Holaday’s son, Kyle, such that Colonial was negligent in preventing the assault. Kyle was not himself an employee of Colonial, so Colonial was unaware of Kyle’s PTSD, violent past, or gun misuse. Nor was there evidence of any prior threats or attacks by Kyle on Colonial employees.

Accordingly, the Appellate Court vacated the lower court’s decision and granted Colonial’s motion for summary judgment on all causes.

This holding provides a promising outlook regarding employers’ duties with respect to remote work. While the decision still leaves some questions open (for example: would there be a duty if remote work was required as part of the position?) it is an encouraging start for limiting employer liability to the standard workplace.

And as a reminder, for all your employees still in the office, the Department of Fair Employment and Housing (DFEH) requires employers to display several required posters throughout the workplace in order to maintain a safe and equitable working environment. As of this year, DFEH updated several of the required posters, including the Prohibition on Workplace Discrimination and Harassment, the Rights and Obligations of a Pregnant Employee, and the Family Care & Medical Leave & Pregnancy Disability Leave posters.

Such posters must be displayed (1) at each location where an employer has employees; (2) at employment agencies, hiring offices, and union halls; and (3) on computers as long as the posters are posted electronically in a conspicuous place where employees will tend to see it. The text of the posters must be large enough for employees and job applicants to read them, and must be displayed in any language spoken by 10% or more of the employer’s workforce.

A link to all required posters, as well as others, can be found here: https://www.dfeh.ca.gov/publications/#requiredBody

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