I never saw the movie Paul Blart: Mall Cop and almost certainly never will. (Do I really need explain that decision?)

The Independent Contractor vs. Employee question often arises in the context of security guards, though. I confess to not knowing how Paul Blart was classified but, for companies who retain security guards, the decision whether to hire them as employees or to contract with a security firm is an important one.

The main advantage of hiring security guards as employees is the ability to retain control over how an individual guard does the job. The company can select who it wants to work and when, and can provide as much supervision and direction as needed.

The biggest disadvantage to using employees for security work, however, is the risk of liability. The very purpose of the role is to guard against dangerous or threatening situations. Where a security guard overreacts, or where someone gets hurt by a guard acting in the normal course, lawsuits are sure to result. And the injuries are likely to involve more than hurt feelings.

A recent Texas case, Henderson v. CC-Parque View, illustrates the benefit of using contractors rather than employees to provide security services. In that case, a management company contracted with a security firm to provide guards at an apartment complex.

One night, an overzealous guard (we’ll call him Blart, because that truly is a great name for an overzealous guard) ordered Henderson (that’s Henderson’s real name), who was sitting in a parked car at the complex, to get out of his car. Henderson got out, but an argument ensued.

In an attempt to proclaim his invincibility, Henderson (I imagine this is how it went down) shouted, “I’m rubber and you’re glue and anything you say bounces off me and sticks to you.”

The guard, an avid fan of MythBusters, did not believe his antagonist’s impromptu physics lesson and shot him in the abdomen with a rubber bullet. It did not bounce. And it hurt.

Henderson sustained injuries. He sued the guard, the security company that employed the guard, and the management company of the apartment complex.

The suit against the guard and security company proceeded, but the management company successfully argued that the guard was not its employee and that it could not be liable for his actions.

The court ruled that the guard was a contractor, not an employee of the management company; and the management company was dismissed from the lawsuit.

Had the guard been hired directly by the management company as its employee, the outcome likely would have been very different, since employers are commonly held liable for the acts of their employees, when in the course of employment.

This case is a good reminder of the benefit of retaining an outside security firm, rather than hiring employees, to provide security services.

And did you hear there’s a Mall Cop 2? I also won’t watch that.

© 2017 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.