Tuesday, October 1, 2013
Elizabeth Chika Tippett has posted "Gatekeepers of Last Resort: The Role of Employers in Mitigating Child Abuse" on SSRN. Here is the abstract:
This article examines the fraught but potentially useful role that employers could play in the prevention and mitigation of child abuse in the workplace. Common law tort liability already places a gatekeeping duty on employers to exclude employees from the workplace when they pose a threat to third parties. In theory, this allows employers to fill a problematic regulatory gap that tends to arise when an employee is accused of abuse but where the police and child welfare authorities decline to take official action. In practice, however, employers face considerable countervailing liability to the employee accused of abuse, which tends to reward inaction or insufficient action to address the particular threat posed by the employee.
Using the Penn State scandal as a reference point, this article provides an overview of existing law regarding child abuse in the workplace and their limitations. Drawing from dozens of cases and labor arbitrations it then provides a detailed examination of the types of liabilities employers face to employees accused of abuse. The article concludes by discussing legislative reforms that would reduce employer liability to those accused of abuse, enabling employers to better serve as gatekeepers of last resort where law enforcement mechanisms fail.