The Problems of Detour and Frolic

With the invention of the automobile, the amount of work that a business could conduct and the area in which it could be conducted both expanded tremendously. But with the increased economic opportunity came an increase in the potential for liability and an increased difficulty in monitoring employee conduct outside of the office. Like the nervous parents of a teenage driver, employers are concerned about what their employees are doing when they're out of sight, and they are using increasingly sophisticated tools to monitor where employees go and what they're doing when they're out of sight. ^[2]

It's not completely unreasonable, of course, for your employer to want some idea of what you are doing outside of the office during the workday. You are, after all, being paid to do a job, not to spend the afternoon shopping. Increasingly, however, the tools employers are using to gather legitimate information about how you're doing your job are also being used to track how you spend your personal time. Technology doesn't make a distinction between work time and personal time; that distinction needs to be made by the people using the technology. Unfortunately, the tendency of employers is to err on the side of collecting more information and not less.

Like so many of the changes in our society, employer surveillance is driven in large part by fear of litigation. Within company walls, harassment or hostile work environment lawsuits cause the most problems; outside the walls, one of the leading types of lawsuits that businesses face are personal injury claims resulting from employee negligence.

If employees were solely responsible for their own actions, the need for surveillance would be greatly reduced (although employers would still be concerned that their employees might be doing something that would reflect badly on the company—a company van parked at a local strip club is bound to cause some comment). But over the centuries, the doctrine of respondeat superior—which provides that an employer is liable for the negligence of an employee—has become an integral part of our legal system.

The theory behind the doctrine is that employers have the ability to control the actions of their employees, through both training and company policy, and therefore are liable for the injuries that their employees cause within the scope of their duties. The practical motivation is that the employer generally has greater resources (or can afford more insurance) and is therefore in a better position to compensate an injured party.

The classic example is the pizza delivery person who causes an accident while speeding to deliver a pizza within the company's advertised half-hour time limit. Since the employee is acting within the scope of her employment, the pizza company would almost certainly be liable for the damages resulting from the employee's negligence. ^[3]

A more difficult issue arises when an employee causes an injury while doing something that is not clearly within the scope of his employment. For instance, if a package delivery person stops to visit his son at his daycare and then sideswipes a parked car as he's leaving, the question is whether or not the employer should be held liable for the employee's negligence.

The answer depends in large part on whether the employee's visit to his son is considered a "detour" or a "frolic." Over the years, the courts have developed a distinction between cases involving a minor deviation from the employee's routine (a detour) and a major departure from it (a frolic). If the daycare center is on a fairly direct line between two package delivery stops, the employee's visit to his son is likely to be considered a detour, and the employer would likely be on the hook. On the other hand, if the daycare center is forty-five minutes off the delivery route, the visit is more likely to be considered a frolic.

Obviously, it can be difficult to determine whether a midday visit to a daycare center is a frolic or a detour. Recently, courts have tried to make it easier for juries to reach a decision by instructing them that in order for an employer to be liable, the employee's conduct must have been "foreseeable." It's no defense that the employee's actions were intentionally harmful or even criminal; if the actions were in furtherance of the employer's business interest, then the employer can still be liable. For instance, if a bouncer injures someone while forcibly ejecting him from a nightclub, his employer may well be liable. By contrast, if a hotel masseur sexually assaults a hotel guest during her massage, is that in furtherance of the hotel's business interests? At least one court has concluded that it is not. ^[4]

A major goal of employee surveillance outside of the workplace, then, is to keep detours and frolicking to a minimum. Time and again, employers report that when employees know that their vehicles are equipped with Global Positioning System (GPS) tracking devices, they're more focused and less likely to take detours, long lunches, or afternoon naps.

But there's a subtle trap lurking for employers in the use of the impressive new surveillance technologies discussed in the remainder of this chapter. On the one hand, surveillance tools like GPS and smart credit cards will certainly make it easier for businesses to prevent or stop inappropriate or negligent behavior. At the same time, however, it will enable employers to compile extensive information about their employees' work habits, activities, and so forth. Since one of the important distinctions between a "detour" and a "frolic" is the foreseeability of an employee's actions, then an argument can be made that the more information an employer has about its employees' activities, then the greater the scope of "foreseeable" activity and the less likely an employer will be able to argue that a particular employee was in fact frolicking.

^[2]Not surprisingly, many of the surveillance tools and techniques that we'll discuss in this chapter were or are marketed to parents as well. There's a natural symmetry between the two markets.

^[3]The pizza company would argue—as Domino's repeatedly did—that it was not within the job description of its pizza delivery people to drive faster than the speed limit. However, juries routinely found that drivers were in fact urged to do whatever was necessary to meet the company's promised thirty-minute delivery time.

^[4]Stern v. Ritz Carlton Chicago, No. 1-97-2148, slip op. (Ill. Ct. Appeals Sixth Div. 1998).