Yes, a very long comment, but I hope it’s worth the read. =)
Having a BS in Justice Studies and having taken many courses in law, I do have some knowledge of Respondeat Superior, but unlike LaRue, I don’t have a JD =).
I think the key to issues dealing with Respondeat Superior surround employment contracts. Many people don’t know that they can to some extent negotiate their own contracts. For instance, if I’m starting a new job, the first thing I ask my employer is whether or not I would be entitled to any legal representation in the event of a civil or criminal suit. Most of the time the answer is no. If there is an incident at work that results in some kind of investigation, employers can and will fire you if you fail to answer questions about the incident because you feel like you have a right to legal representation. (That’s the fraud examiner coming out in me =] ).
So in that regard I say to everyone, KNOW YOUR CONTRACTS! (all of this will come into play in a moment)
I’ve touched on Respondeat Superior a few times in some fraud classes, and my understanding of the topic is that… when an issue occurs, say for instance… I’m employed by XYZ gym as a personal trainer. I must follow my own scope of practice as assigned by my certifying organization, as well as any rules that XYZ gym sets forth for me. If my scope of practice conflicts with rules set forth by XYZ, I’m going to follow that scope of practice before I follow the rules set forth by XYZ… XYZ gym does not have any control over what I can and cannot do as a personal trainer. XYZ has no say over my scope of practice because they were not the certifying organization… make sense? For example:
Say XYZ tells me that they’ve selected me to be the spokesperson for their new supplement, or they have a supplement that they’re hoping to sell in order to bring in a little extra money, and they select me as one of their “pushers.” I would never do this because I’m only certified as a personal trainer, and I don’t recommend supplements one way or the other because my scope of practice clearly states that I should refrain from making specific recommendations about supplements and should refer my clients to a physician or a registered dietitian. (I think this is what you’re getting at, from my supplement post in my blog, could be wrong, everyone read it if you haven’t read it because I’d like some feedback! I think it’s pretty accurate, but I’m still wet behind the ears). Anyway…
So here I am, a personal trainer at XYZ, being asked to sell a supplement. No big deal. I’m only being asked right now. So I tell my employer, respectfully, that I will look at the supplement, do some research, and I will tell my clients facts about the product, let them know that I am not recommending that supplement rather I am simply giving them information, let them know that supplements are not regulated by the FDA, let them know that they need to consult an RD or doctor before implementing supplements, offer to refer them to an RD or doctor to discuss the issue, but that’s all I can do because that’s what my scope of practice allows me to do as an ACE certified personal trainer.
Little do I know that the force is strong with my employer! =) and my employer isn’t satisfied with that.
Now I’m being told that my employment depends on selling these supplements. Being a submissive employee (never in real life when it comes to this) I decide that I really need the job, and I agree to endorse the supplements.
In this case, vicarious liability and respondeat superior issues become muttled and somewhat unclear. If a client uses the supplement and dies, and it’s concluded that the supplement caused the death, YES, the ultimate responsibility lies with XYZ gym. My employer is seeking to gain a benefit from this relationship (monetarily). My employer is asking me to sell these supplements during my time on duty and while performing my duties at XYZ. My employer reasons that the action is incidental to the scope of my job at XYZ. All elements are met here for Respondeat Superior.
However, because of my scope of practice as a trainer, I should have known that what XYZ was asking me to do was illegal. I, too, could be tried separately and most likely convicted as an equal party in the death of the client. (manslaughter most likely here)
In a court of law, I think that we would find that if I refused to endorse the supplement and attempted to make a reasonable accommodation for what my employer was asking, and was still fired, I would definitely be entitled to compensation or would get a favorable judgement in a wrongful termination suit.
First of all, XYZ should have known my scope of practice as set forth by ACE, or else they shouldn’t have hired me. Second, since that they have told me that my employment depends on selling their supplements, I have a case if I’m ever fired. It does not matter if I’m carried on their liability insurance or not. It does not matter if there is a specific rider in their insurance contracts that protects me from lawsuits against supplement related issues. I’ve got that same rider in my own insurance policy, that doesn’t mean that I’m going to go around and make supplement recommendations, just because I think I’m covered. I would NOT be covered in this situation because I would be making a very specific recommendation on a supplement. My insurance only covers me if I make a mistake with no intent to commit a crime, blatant disregard for the rules doesn’t fly here.
In conclusion, every certification MAY have its own scope of practice, and employers should know that each certifying organization MAY have a different spin on that scope of practice, even if it’s the same position (personal trainer for example). In order for employers to prevent Respondeat Superior suits, socpe of practice (multiple certs?) should be taken into consideration when hiring any employee, and the terms of employment (what’s expected of the employed) should be very clear an concise from the beginning. Anything in the employment contract that goes against scope of practice should be nullified and revised in order to make everything as legal and as clear as possible…
Now, all of that is just off of the top of my head, I’m no expert by any means. I could be completely wrong, so I’m going to ask LaRue to revise all that and let me know if that was close at all. There are many potential mitigating and aggravating circumstances that could quickly play into the worst case scenario above. The totality of the circumstances surrounding the issue would need to be considered.
If you’re reading this, congratulations you got through it all and thanks for taking the time! Let me know what you think about all that! I think employment contracts are taken for granted these days.