A split-shift babysitting arrangement turns into abuse: is Acme liable?

A single mother working for Acme employs a split-shift coworker to care for her daughter after school. The arrangement turns into a lawsuit for Acme when the coworker abuses the child and the mother points the finger at her employer.

For the past five years, Sharon Charalyke has been her family’s sole means of support after her husband skipped out on her and their two-year old daughter. Lacking anything that resembled a job history, this single mom knew it wasn’t going to be easy starting at square one in her quest for something resembling a sound economic reality.

With no serious expectation of ever receiving alimony or child support -- her ex seemed to have vanished from the face of the earth -- Sharon played the hand she was dealt. First, she sold the house and most of the furnishings to revive a savings account that vanished with him. Then, she rented a small apartment in the complex on the edge of town where her mother was trying to enjoy her golden years by playing shuffleboard with her neighbors and sitting in a favorite rocker in the lounge area. Sharon’s move made sense on two levels. It gave her ready access to competent child care directly across the courtyard and it gave her mom a new zest for life and the cherished opportunity to be with her granddaughter five or six days a week.

Her next priority was finding a job that paid enough to permit Sharon and her daughter to survive on current income without having to dip into the nest egg from the house sale. She promised herself she would never stop seeking opportunities to improve her financial lot in life. Having absolutely no interest in flipping burgers or waiting tables, Sharon searched aggressively for several weeks before landing the first job she had ever held as an adult.

She was hired as the assistant to a startup entrepreneur who was expecting to have at least moderate success manufacturing and selling the combination insect repellent/hand lotion/sun block he had developed in his basement lab a year earlier. Her work hours were flexible, perhaps somewhat erratic, the pay was ok and her boss was a nice guy who taught her a lot about databases and running a two-person, high-tech office. Both of them knew the venture was a gamble that would pay off quite nicely in the long run if all went well in the short run. Nevertheless, Sharon remained diligent about attending adult education classes and learning as many transferable skills as her position afforded, just in case the project tanked.

Together, Sharon and her boss struggled to keep the venture growing in accordance with the business plan. Sharon attributed the company’s demise two years later to the owner’s reluctance to purchase advertising space in relevant consumer and trade magazines.

With her budget once again reined back to survival mode, Sharon spent nearly six months in another intense job hunt, performed this time with much more confidence. The effort culminated in her walking through Acme’s front door for a job interview.

When Rudy Bayger, Acme’s maintenance manager, noticed the extensive database experience on Sharon’s resume, he wasted no time asking her to pay a visit. Acme would be commissioning a new computerized maintenance management system in about a month and its underlying database was the same one Sharon had been operating and customizing successfully for the entrepreneur. Rudy needed her skillset in the worst way. Most of his staff still struggled with the intricacies of the old, unsophisticated software that was on its way out. It was evident to him that they wouldn’t be able to turn maintenance data into actionable information very efficiently in the future.

She was exactly what Rudy and Acme needed. In addition to the new, higher salary, her working hours would be predictable, which was just what Sharon needed most at this stage of her nascent career. She found the new work exciting, the company was making a profit and she enjoyed working in an office full of people. Everything at Acme moved along at a much faster rate than it did at the entrepreneur’s office.

About the time Sharon was enjoying a well-deserved reputation as Acme’s database whiz, her mother began exhibiting age-related problems. Granny was getting confused easily and doing things that were out of character. The kicker was when her daughter called the office to say that Grandma was acting funny. She served only jelly beans and cold pancakes for an after-school snack. When the girl returned from the playground, Grandma refused to unlock the door because she didn’t recognize her own granddaughter.

The news spread rapidly through the office grapevine and more than a few employees offered Sharon suggestions and help finding day care for both of them. Her daughter was the easiest. A coworker, Ole Innfrei, lived in the same apartment complex where Sharon lived, but in a different building. Because he worked a split shift, he volunteered to watch Sharon’s daughter for the three hours between the time school let out and when Sharon arrived home. With that problem solved, getting help for Grandma required only a few phone calls.

But, as we know from other tales from the Acme annals, life is rarely that simple. Initially, things went smoothly for Sharon, but about a month later, her daughter inexplicably became moody and withdrawn. Nothing Sharon tried could snap the kid out of her funk. She didn’t want to go to school. She didn’t want to stay with Ole after school. She simply wanted to hide in her bedroom.

Three weeks later, the school’s principal called Sharon to report her suspicion. Based on some of the things the girl had been heard saying, there was a real risk that child abuse was occurring. That evening after dinner, Sharon questioned her daughter about the matter.

It was with great reluctance and many tears that the child revealed the truth. Sharon then realized that her daughter was sexually abused twice while in Ole’s care. The next morning her outrage exploded into pure rage when she learned what Rudy knew about Ole’s background and never said a word. A few years ago, the state department of corrections had contacted Rudy to inform him that Ole was a parolee who was convicted of attempted sexual battery of a minor.

Sharon filed suit against Rudy arguing that he should have known that Ole was an unfit babysitter. Because everyone involved in this debacle is an Acme employee, Sharon also held the company liable for her daughter’s injuries.

How could this situation have been avoided? Does an employer have an obligation to get involved in its employee’s private affairs? Are sex offenders entitled to privacy? Should Acme offer child care services?

A corporate consultant says:

Let's clarify one very important point: It is not stated in this case that Rudy knew about Sharon's baby-sitting arrangement with Ole. It's not typical for manager to know the problems or challenges in an employee’s personal life, so Rudy may well have been unaware of Sharon's changing domestic needs.

If we assume Rudy didn't know about Sharon's arrangement with Ole, then in my opinion, Rudy had no obligation to inform anyone of Ole's past, other than Acme's HR department.

Although the best employers are willing to help employees through difficult problems, it’s not the responsibility of an employer to initiate involvement in the personal affairs of its employees.

I can't even begin to imagine Sharon's rage. However, absent Rudy's knowledge of the baby-sitting arrangements, I don't see how Acme is liable.

If Rudy did know of Sharon's arrangement with Ole, he most definitely should have informed Sharon, either directly or by contacting the state department or the police, making an urgent request that she be informed immediately.

As for whether Acme should offer child-care service, there's no way to make that assessment based on the information given. Whether or not to offer child care is a business decision, requiring a comprehensive cost/benefit analysis. Companies can’t get into the child-care business to avoid cases like this, nor should the absence of on-site child care be cited as a causal factor for cases like this.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:

Sharon’s problems are indicative of a growing issue in American business that we haven’t dealt with effectively or even fully understood. In 1960, more than 70% of families with children had one parent (almost always the mother) at home full-time. The trend has reversed dramatically – almost 80% of mothers of school-age children now work. And the number of U.S. single-parent households (again, almost always women) has increased to about 30%.

Effectively dealing with the issue of working mothers has been difficult for most companies. Some refuse to see it as a corporate problem and ignore it completely. In contrast, some larger companies have instituted a variety of programs to accommodate women with families. For example, SAS (the software designer) has on-site day care, as well as social workers who find other childcare resources and alternatives for the employees. They also have on-site medical and dental care for the children. Other companies allow employees (male and female) to work at home, have job-sharing arrangements, or use flextime to allow the employee to work only the hours when the child is in school.

While companies may bristle at the cost for these services, research indicates the companies that provide these services have lower rates of absenteeism, less turnover and higher productivity. So, bottom line, these services usually yield a good return on investment.

But to the point: Acme needs to get serious about dealing with this issue. Trends predict that in the next decade, Acme’s workforce will probably be predominately women, many with children at home. Acme (or any other company) that wants to attract and keep talent has no choice but to acknowledge the issue and provide some form of child-care assistance for working mothers.

As to whether Acme or Rudy are legally liable for Sharon’s problem, that is something I defer to the attorneys. However, I would say that Sharon should be nominated for the National Stupidity Award for leaving her daughter alone with a male whom she barely knows.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

This unfortunate saga hardly makes one admire Rudy Bayger who, through sheer inaction, has allowed a horrible thing to happen to a young girl. Our legal system establishes a social code of conduct, but it doesn’t always mandate actions that are morally correct.

Absent a law to the contrary, generally, there is no obligation to take action to come to the aid of another person. A motorist, for example, who comes upon a car accident and an injured driver, has no legal obligation to provide first aid or to summon assistance. If the person chooses to provide first aid, however, the law mandates that the person not provide aid in a negligent manner.

As a result, Sharon is not likely to prevail in a lawsuit against Rudy. The more interesting question is whether Acme should terminate Rudy for allowing injury to befall Sharon’s daughter. Because we have no knowledge that Rudy is anything but an employee at will, there should be nothing to preclude Acme from terminating him.

Does Ole have a right to privacy about his conviction for attempted sexual molestation of a minor? Probably not. In some parts of the country there are registries of sex offenders whose names are made public solely to avoid the result we see in this case. Rudy had the option of informing Sharon about Ole’s background but no obligation to do so.

Even if the law held Rudy liable for failing to warn Sharon about the risk involved with her new babysitter, the law is clear that Acme would have no liability for Rudy’s inaction. An employer is responsible for acts that an employee performs that arise out of his employment. However, Acme did not employ Rudy to provide advice to Sharon about her babysitting arrangements, and the company cannot be held liable for Rudy’s conduct.

Many enlightened employers today provide child-care services for their employees, and that step might allow Acme to attract more talented young women to its workforce. Perhaps Acme also ought to provide an educational seminar for its employees about civilized behavior, so other employees might act in a more thoughtful manner toward their coworkers than Rudy did.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

 

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