Birkner v. Salt Lake County

In Birkner v. Salt Lake County, 771 P.2d 1053, 1056-59 (Utah 1989), the Court analyzed whether an employee was acting within the scope of employment when he committed a sexual battery during the course of counseling. See id. at 1056-59. In applying the three criteria, we found that even though the sexual misconduct took place within the time and spatial boundaries of employment, the battery was not the general kind of activity a therapist is hired to perform. See id. at 1058. More importantly, the conduct was not intended to further the employer's interest, but was merely to serve the "private and personal interests" of the therapist. Id. The Court examined Utah law and other legal authorities. The analysis resulted in three basic criteria for determining whether an employee's conduct lies within the scope of employment. These three criteria are that the employee's conduct must: (1) "be of the general kind the employee is employed to perform," (2) "occur within the hours of the employee's work and the ordinary spatial boundaries of the employment," and (3) "be motivated, at least in part, by the purpose of serving the employer's interest." Id. at 1057.