Safety Related Misconduct Defenses

In the Course of

Time, Place, Activity and Circumstances

In The Course Of: Time and Place

Going and Coming Rule

Dual Purpose Trips

Working at Home

Deviations

Going and Coming Rule: A Default

Injuries occurring off premises while employees are coming to/going from work are NOT compensable.

Pre Requisites

Fixed Place and Hours of Employment

Off Premises

Journey to/from Fixed Place

Creature of Common Law/Judicial Procedings

Think about the journey!!!

Look for facts that may create an exception.

Work Journeys: Key Points

If the journey is part of the work, or a substantial part of the service, then going & coming doesn’t apply.

Traveling employees are generally within the course of their employment from the time they leave home on a business trip until they return. (Travel is a big part of the job.)

Factors that will often lead to travel/off-premises injuries being considered an exception to the going/coming rule:

Special Errands

On-Call Employees

Wages paid for travel time

Reimbursement for travel.

Paid Coffee Breaks

Company Provided Vehicles

Significant Consideration is benefit to the employer.

4

Dual Purpose Trips

Cardozo Rule: If the work of the employee creates the necessity for travel, he is in the course of employment, though he is serving at the same time some purpose of his own…”

Applies to Injuries during the Journey

Cardozo Test

What sent the traveler on the trip?

Would the trip have occurred but for the business component?

Would the business trip still be made if the personal component was not present?

Fact Dependent Test

Working at Home

If an employer, for its own advantage [benefit], demands [expressly, and in some cases implicitly] that a worker furnish the work premises, the risks of those premises encountered in connection with the performance of work are risks of the work environment even if they are outside of the employer’s control, and injuries resulting from those risks arise out of the employment.”

Deviations: Key Questions

Is the deviation substantial/insubstantial?

Has travel toward the business destination been regained?

Is a business-related detour occurring on a personal/mixed purpose trip?

Did the deviation create special and/or added risks?

In The Course Of: Activity/Circumstances

Activity is not limited to the direct services an employee performs for the employer.

Key Questions:

Indirect Benefit to Employer?

Activity a common incident of the employment?

Personal Comfort Doctrine

Recreational and Social Activities

Horseplay

Safety Related Misconduct Defenses (Dr. Spurlock’s ABA Article)

Personal Comfort

Key question: Is the act of personal comfort a departure that is so great that the intention is to leave the scope of employment (temporarily abandon job)?

Key question: Was the act prohibited by the employer, or has it permitted the activity?

Key question: Has the employer authorized the activity – either implicitly or explicitly?

Recreational and Social Activities

Key Question: Is employee paid for participation?

Key Question: Is there a statute in state specifically dealing with recreational or social activities?

Key Question: Should employer have expected participation?

Key Question: Was participation required – implicitly or explicitly?

Key Question: On premises?

Key Question: Employer control of activity?

Horseplay

Key Question: Was the horseplay customary?

Key Question: Was that act minor/insubstantial?

Key Question: Employer prohibit horesplay?

Record of Enforcement

Implicit or Explicit Prohibition

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