Originally Published in The Legal Intelligencer on
Over the past decade, many European countries have passed laws
mandating that individuals and employers report criminal conduct.
In the United States, however, individuals are typically not
required to report criminal conduct that they have observed.
Likewise, employers have no general duty to report criminal conduct
by their employees.
However, not all situations are created equally, not all crimes
are treated the same, and exceptions exist that may require
employers to report the criminal actions of their employees.
Consider the following scenario:
SCENARIO: A Fortune 500 company is committed to
developing a family-friendly workplace. The company has developed
industry-leading flex initiatives, benefits for working mothers,
and extended pregnancy and child-care leave programs. The company
has won numerous awards and is recognized as one of the best places
to work for workers with children. One of the company's newest
initiatives is an on-site, company-owned daycare center for
children of employees. One daycare staffer notices that a
5-year-old child frequently arrives at the center with suspicious
bruising on his arms and legs. What obligations does the employer
have in such a situation?
All 50 states have passed laws regarding the reporting of
suspected child abuse. While some states require anyone who
reasonably suspects child abuse to report it most states define
certain specific groups of professionals that must report such
abuse. These groups typically include types of jobs that require
regular interaction with children, like teachers, doctors, social
workers and law enforcement officers. These laws generally require
the reporter to call a designated reporting hotline and provide the
suspected abuser's name and other identifying information. Some
states allow the reporter to remain anonymous. In most states, a
good faith report of suspected child abuse provides immunity for
In all states with such laws, daycare centers are designated as
mandatory reporters of suspected child abuse, as are any persons
paid to care for a child in a public or private facility.
Pennsylvania expressly mandates that any staff of a daycare center
that has reason to believe that a child enrolled in the facility
has been abused is required to report it. These laws cover and
apply to daycare centers run as a benefit for company employees,
even though the company is not in the "daycare business,"
and even though only company employees may take advantage of the
Employers that offer daycare services to their employees should
take steps to train the employees staffing the daycare center about
their reporting obligations and the steps that they must take to
spot and report suspected abuse. Employees should be trained on the
protections that the law offers for reports that are ultimately
unfounded but made in good faith, and explain that the employee
will not be reprimanded for following policy, even if mistaken. The
employer should also designate an HR person to field questions from
daycare employees regarding reporting obligations.
Finally, employers should be aware that, depending on the state
in which their business resides, mandatory reporting requirements
for suspected child abuse may apply even if their business is not
typically one associated with child care. Employers should know
whether they are subject to mandatory reporting requirements in
their state and advise their employees accordingly.
As our readers know, federal and state departments of labor have intensified their scrutiny of independent contractor arrangements and are coordinating with the federal and state taxing authorities when misclassifications are found.
Courts often conclude that absent appropriate disclaimer language and statements in employee handbooks are "promises" to employees, binding employers to abide by these promises in their dealings with employees.
Employers sometimes rely on equitable arguments, such as "unclean hands" (which asserts that it would not be fair to hold an employer liable when the employee’s actions caused or contributed to his own injury or damages).