How much an employer should know about the mental state of an employee, and how responsible they might be if that employee breaks the law or does something awful, is a question lots of people have been asking since the co-pilot of a German airliner deliberately crashed the plane in the French Alps last week, killing himself and the other 149 people on board. And does that question pertain in any way to staffing companies? 

Lufthansa, the parent company of low-cost subsidiary Germanwings, the operator of the plane that crashed, is now facing what may be the worst crisis in its history after acknowledging that it had been aware that the co-pilot had a history of severe depression.

Pilots are supposed to disclose all physical and psychological conditions and medications or face significant fines. In addition to this “self-reporting” standard, most airlines also rely on other crew members to report suspicious behavior or monitor the health of their co-workers. 

But this doesn't always work, as is also evidenced by another case. 

Acts out and then sues

Clayton Osbon is a former JetBlue airline pilot who made his own ill-fated flight in March of 2012 despite a “disheveled” appearance, inefficiency in performing preflight checks, and overall “disoriented” demeanor which clearly demonstrated that something was wrong.

He was permitted to fly though, and once airborne, left the cockpit and went up and down the aisles ranting and raving about the likelihood of a terrorist attack, various imagined dangers, and the need for the crew and passengers to embrace religion.

Osbon was eventually locked out of the cockpit and subdued by passengers, and was subsequently charged with federal crimes. A federal judge in Texas later found him not guilty by reason of insanity, but he did have to forfeit his pilot’s medical certificate, and can no longer fly commercially.

However, he has now filed this lawsuit in federal court against his former employer, claiming the airline was negligent because it knew, or should have known anyway, that he was “physically and mentally unfit to fly.”

In the suit, he attributes his bizarre behavior to suffering for the first time in his life a "complex partial brain seizure" as a result of a childhood brain injury. He says because he couldn't control his actions he is therefore not responsible for them, and is asking for $15 million in damages for his income loss, emotional distress, etc. 

A Tale of Two Employers

What if a temp you placed at a customer's worksite acted out in a similar fashion along a crowded assembly line for example? They likely wouldn't put 150 lives in danger, but they could certainly pose a substantial potential risk to themselves, their co-workers and your customer's property. Who is responsible if something happens?

Richard Hu and Rachel L. Schaller are attorneys in the Chicago office of Taft, Stettinius and Hollister. They say when a temporary employee, initially employed by a staffing agency, is assigned to work for a second employer, the employee can be found to have two employers:
the former a “general employer” and the latter a “special employer.”

Legally speaking, the attorneys say the company “in control” may be liable for a temporary employee’s conduct because that company is in the better position to take measures to prevent the conduct or injury. 

To determine if your company is “in control,” they say to consider the following factors:

  • how the contract specifies which employer has control over the temporary employee
  • the degree of control your company has over the manner and method of the employee’s work
  • the degree of supervision customarily associated with the type of work performed
  • who has the ability to discharge the employee

They add that a special employer is not automatically liable for a temporary employee’s negligence simply because the conduct occurs during business hours or on business premises. In order for an employer to be liable for its employee’s actions, the action must be directly related to the employee’s work.

The EEOC published an Enforcement Guidance on the application of EEO laws to contingent workers supplied by staffing firms. You can access all 35 pages by clicking here.

Tags: Staffing agencies, EEOC, Temporary workers, Contingent Workers, EEO, Germanwings, Lufthansa, Clayton Osbon, JetBlue, Two employers, Richard Hu, Rachel Schaller