110 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 5.10.2 Intentional torts by employees The traditional rule is that an employee’s actions are within the scope of employment—and thus binding on the employer—only if they are motivated, in whole or part, by a desire to serve the employer’s interest. Deviating from this rule, California courts have expanded employer liability by reasoning that an employee’s willful, malicious, and even criminal torts can fall within the scope of employment. In California, the employer is vicariously liable for an employee’s conduct—even if that conduct is not authorized or ratified—if the employment predictably creates the risk that employees will commit torts of the type for which liability is sought. The Court of Appeal applied this expansive notion of tort liability in holding that an auto-supply store could be liable to a customer who had been assaulted by the store’s employee. The employee had hit the customer in the head with a metal pipe when the customer criticized the employee for giving an inadequate response to a question about the price of motor oil. The Court of Appeal concluded that this physical eruption, stemming from a customer interaction, could be a predictable risk of retail employment.304 5.10.3 Unintentional torts of employees Under the traditional “going and coming” rule, employers are not liable for torts that their employees commit on their way to and from work, because commuting employees are not acting within the scope of their employment.305 But California courts have created a “required vehicle” exception to the going-and-coming rule, reasoning that an employer derives an incidental benefit from its employee’s use of a vehicle where that use is an express or implied condition of employment. The Court of Appeal has reversed summary judgment for the employer of an employee who hit someone with her car on her way home from work, even though the accident occurred while the employee was deviating from her normal route home to obtain some frozen yogurt and attend a yoga class. The Court of Appeal broadly reasoned: “Because the employer required the employee to use her personal vehicle to travel to and from the office and make other work-related trips during the day, the employee was acting within the scope of her employment when she was commuting to and from work.”306 And “the planned stops [for yoga and yogurt] were not so unusual or startling that it would be unfair to include the resulting loss among the other costs of the employer’s business.”307 But the “required vehicle” exception applies only when the employee is under a duty to bring the vehicle to work— either as a matter of daily duty or as a matter of duty on the day of the accident.308 The Court of Appeal reversed judgment against an employer where the employee was under no such duty: on the day of the accident he was not required to drive, not assigned any job duties outside the workplace, and not using his vehicle for work purposes.309 5.11 Employment Discrimination Litigation California forbids all the kinds of employment discrimination forbidden by federal statutes, plus quite a few more (see § 6.2). Even California, however, recognizes that a worker suing for employment discrimination must first be an employee. A participant in the Adult Offender Work Program (AOWP) thus lost his claim for disability discrimination. Although injured while performing work in the AOWP, he could not sue his employer under the FEHA for his injuries, for failure to accommodate his preexisting physical disability, and for failure to engage in the interactive process. The trial court, affirmed by the Court of Appeal, granted summary judgment against the participant, finding that he was not an employee for purposes of the FEHA. The Court of Appeal affirmed, reasoning that an individual must receive remuneration to be an employee. The Court of Appeal reasoned that remuneration must take the form of a substantial financial benefit and here the participant did not receive any
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