Can an employer be responsible for an employee’s misconduct even before that employee starts work? A recent decision reinforces the notion that an employer may be held liable for the misconduct of a future employee if it knowingly benefits from that misconduct.

In Thola v. Henschell, 2007 Wash. App. LEXIS 2360 (Wash. Ct. App. 2007), chiropractor Alta Mahan continued working at Mary Jo Thola’s chiropractic clinic after agreeing to take a new job at Henschell Chiropractic. Henschell promised Mahan a $100 bonus for each new client she attracted. While still working at Thola’s, Mahan obtained Thola’s confidential patient list. Mahan then persuaded many of Thola’s patients to follow her to Henschell. After Mahan began working at Henschell, Thola sent a letter to Henschell. In this letter Thola explained that Mahan attracted many of Henschell’s new patients through Thola’s confidential patient list. Despite the letter, Henschell kept the patients and allowed Mahan to keep her bonuses.

Thola sued Mahan and Henschell, claiming that Henschell was responsible for Mahan’s misconduct. The court held that even though Mahan was not Henschell’s employee at the time she took Thola’s patient list, Henschell could still be held responsible because, after Thola informed it of Mahan’s misconduct, Henschell kept the new clients and allowed Mahan to keep her bonuses.

This case serves as an important reminder that an employer can be held responsible for the misconduct of a future employee even before a formal employment relationship is established. By accepting the benefits of a future employee’s misconduct with knowledge of that misconduct, an employer is subjecting itself to liability.