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As an employment attorney and President of an HR Consulting Firm who makes my living conducting employment law training, I am hard-pressed to understand why employers are not better prepared for workplace violence.  I guess that one reason is that it takes years of litigation for employers to “get it”.  Similar to sexual harassment that first appeared in the 1970’s which took almost 35 years for most employers “to get” and to come to understand that they had to conduct training to avoid liability under the employment discrimination laws, I assume that the same is true of workplace violence.  Perhaps we are just in its infancy when many employers are not yet aware that it could happen in their workplace and also do not really know how to prepare.  Or perhaps it is due to the fact that many employers just really do not understand the consequences of having an instance of workplace violence occur in their workplace. 

Of course there is the immediate consequence of the horrific loss of life and unnecessary violence they and their employees have to endure.  In addition, there is the PR nightmare of being known as a company that failed to prepare for workplace violence and being seen with police crime scene tape all around your workplace on the evening news.  But perhaps employers don’t understand the deeper implications that failing to prepare for workplace violence can have on them.

What deeper implications you ask.  Well, first of all there is the possible liability under OSHA since all employers have an obligation under the general duties clause to provide a safe workplace for their employees.  But in addition, there is what is perhaps even more startling for employers, the fact that they can be held liable for the injuries caused by these instances of workplace violence under many creative theories of liability that plaintiff’s attorneys utilize. 

First there are the negligent hiring theories of liability.  What does this mean? This means that had your human resources department done their part to check this employee’s background prior to hiring the employee, you would have known that he had been fired from his prior job for an instance of violence.  By failing to check his background, you were negligent in the hiring process and brought this dangerous employee onto your premises where there was a likelihood that he would be violent again.  What kind of damages are we talking about in these cases?  Damages in the millions.  Let’s look at a few cases to get the picture. 

Then there are the negligent retention theories.  This is where the plaintiff alleges that you the employer were aware of the disgruntled worker’s tendency for violence and for jumping off the deep end and yet you failed to discipline him when he worked for you and failed to terminate him.  Thus, the theory goes that by retaining him without warning him to not continue to engage in discipline and by not getting rid of him, you subjected your employees to a person prone to violence and were thus negligent. 

Either theory can lead to huge amounts of damages.  For instance,
Employers that wish to be proactive and protect and prevent workplace violence in their workplaces need to recognize that this is a case where an ounce of prevention can be worth a pound of cure.  What type of prevention.  First and foremost, employers should have a well-drafted workplace violence policy.  Next, they need to provide training on that policy and on workplace violence in general to their managers and employees.  Such training can be essential when it comes to having a viable defense to a case seeking to hold the employer liable for the workplace violence.  It shows that the employer recognized that their could be a problem and took affirmative steps to prevent such a problem.  It is also important that training can help managers recognize the warning signs of workplace violence.  Thus an employer’s failure to provide training which may have led to a manager’s failure to recognize warning signs and thus take preventive measures could prove fatal in a negligent retention lawsuit.   

Employers need to be better prepared for workplace violence.  It took many years after sexual harassment first became popular in the 1970’s until employers completely understood their need to provide sexual harassment training.  The same appears true of training on workplace violence.  However, Take for instance the recent instance of workplace violence in Saint Louis, Missouri that left 4 dead including the shooter.  Apparently this disgruntled employee was upset about his retirement benefits and had instituted a lawsuit against his company.  Seeking to take matters into his own hands, on January 10, 2010 he walked into the plant where he worked on the assembly line carrying an assault rifle and handgun and started shooting.  His actions left 4 dead including himself.  Witnesses described the scene as utter chaos.  Although we can never be ready for these type of instances I find myself wondering if such incident could not have been prevented by simple training and preparation that the factory might have done that could have saved these four lives. 

Similar concerns have emerged regarding the Fort Hood shooting.  The Pentagon Report which was recently released indicated that there were numerous warning signs that supervisors did not see or failed to report.  Warning signs that if paid attention to could have possible prevented the horrific instance of violence that took place on November 5, 2009 at Fort Hood.

What lesson does all of this provide for employers.  This is where employers need to focus their training efforts in the coming months.  Training your workforce on how to recognize the warning signs of workplace violence and on how to prepare for instances of violence should they arise can help employers prevent and be better prepared if workplace violence should arise in their workplaces. 

DAVID LETTERMAN-IS IT SEXUAL HARASSMENT?

Everyone out there cannot keep from commenting on whether or not David Letterman’s alleged affairs with staffers who worked for him was or was not sexual harassment.  So perhaps a legal analysis of the law with regard to sexual harassment against a backdrop of the facts that have been alleged so far is in order. 

Two Different Kinds of Sexual Harassment

Sexual harassment is a subset of employment discrimination based upon sex which is unlawful under Title VII of the Civil Rights Acts of 1964 and 1991 as well as under most state’s laws.  There are two types of sexual harassment that exist.  Perhaps the type that has received the most attention although not as prevalent today is “Quid Pro Quo Harassment”.  The other type of sexual harassment is “Hostile Work Environment Harassment”.

Quid Pro Quo Harassment

The EEOC definition provides that Quid Pro Quo sexual harassment exists “when there are unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1)submission to such conduct is made either explicitly   or implicitly a term or condition of an individual’s employment, or (2)submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual”.

What does this mean in plain English?  This is the situation when a manager says to a subordinate, “sleep with me or you will be fired”.  In other words, the manager abuses his/her power and authority by promising employment benefits or threatening job detriments based on whether the subordinate provides the requested sexual favors.  Of course the manager does not have to use those exact words.  If the manager subtly implies or conveys the message that the employee will get ahead if the employee provides sexual favors, that is enough.  So since David Letterman allegedly slept with employees who worked for him and he certainly had the power to hire and fire them there is a possibility that his actions could constitute sexual harassment.  However, in any sexual harassment action, whether it is quid pro quo or hostile work environment harassment, there is also the requirement that the harassment be unwelcome.  Therefore, any employee alleging sexual harassment would have to prove that the sexual relations were unwelcome to her and not consensual.  If they were consensual, any sexual harassment claims would probably not be successful. 

Hostile Work Environment Harassment

The other type of sexual harassment is “hostile work environment harassment”.  The EEOC definition of this type of sexual harassment is that it exists “when there are unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or
offensive working environment.”

So what type of actions could create a hostile work environment?  This is the situation where groups of employees sit around and tell sexual jokes or whistle at an employee as the employee works by.  Courts also require that the jokes, comments, etc. be severe and pervasive in order to substantiate this type of claim. 

Although only managers can engage in quid pro quo harassment this is not so with hostile work environment harassment.  Co-workers, managers or even consultants and clients who come onto an employer’s premises can create a hostile work environment.  A manager who condoned this type of activity and engaged in it himself could certainly be held to have violated the company’s sexual harassment policy as well as the law.  So if it were proven that David Letterman condoned an atmosphere of sexual jokes and comments by his staffers and he engaged in this himself, one might be able to prove that he had violated his company’s sexual harassment policy as well as the law. 

Farragher and Ellerth Affirmative Defenses

However, there are two important defenses that an employer has to a claim of sexual harassment.  In 1998 the US Supreme Court in the Farragher and Ellerth cases held that when a supervisor engages in harassment, for instance says “sleep with me or you will be fired” and the employee does not sleep with him and the manager does not take the tangible employment action, namely he does not fire the employee but only had threatened to do so, then the employer may assert an affirmative defense.  The affirmative defense is that if the employer can prove that it exercised reasonable care to prevent and promptly correct sexual harassment and if the employer can prove that the claimant unreasonable failed to complain then the employer may be successful in avoiding any liability for the harassment.  Accordingly, if David Letterman’s employer could show that it exercised reasonable care to avoid sexual harassment and that any employee with whom Letterman allegedly had an affair unreasonably failed to complain about harassment, then the employer might have a good chance of avoiding any liability for any harassment by Letterman. 

A Manager’s Personal Liability for Harassment

What about Letterman’s personal liability for any harassment?  Although there is no personal liability for managers under federal law, courts in New York have held that managers can be held personally liable for harassment that they aid and assist in.  If it could be shown that Mr. Letterman aided and abetted any harassment in the workplace then a plaintiff might be able to hold Mr. Letterman personally liable for such harassment.

What Action Should His Employer Take

Now that all of these allegations have come out the best course of action for Mr. Letterman’s employer would probably be to conduct an investigation to determine if their was any alleged harassment.  If the employer found that there was any harassment then the employer would be required to take “prompt corrective action”.  What is prompt corrective action?  It is not necessarily termination.  It merely requires that the employer take any action and usually it would be disciplinary action that would ensure that any harassment stopped. 

So Was It Sexual Harassment?

So it remains to be seen what, if any thing will happen if any employee comes forward with any sexual harassment claims in the Letterman case.  However, now at least there is a better understanding of the law in this area and how it would apply to the facts of this case as they continue to emerge and if any of the allegations were proven to be true. 

Why Does An Employer Need Documentation When Terminating At-Will Employees?
By:  Melissa Fleischer, Esq.
        President and Founder
        HR Learning Center LLC

One question that managers often have is why they need to worry about documentation when terminating employees since everyone is an employee-at-will.  The answer requires a short summary of employment law 101.  Although employment in every state in the country other than Montana is employment-at-will, the answer lies in what most employees do once they have been terminated.  First of all, what is employment-at-will? Employment-at-will means that you can hire or fire an employee for any reason or no reason at all.  However, there is a little exception at the end of that sentence that states that this is so “as long as the reason is not unlawful”.  Herein lies the problem.  Many employees who have been terminated will claim that their termination was unlawful because it was discriminatory based upon their protected class.  As everyone knows, under Title VII of the Civil Rights Acts of 1964 and 1991 there are only 5 protected classes, to wit, sex, color, race, national origin and religion.  If President Obama has his way there may soon be a sixth which will be sexual orientation.  But currently there are five protected classes under Title VII as well as age under the Age Discrimination in Employment Act, disability under the Americans with Disabilities Act, military status under USERRA and genetic information under the Genetic Information Nondiscrimination Act (“GINA”).  In addition, each state usually has a larger number of protected classes than under federal law such as citizenship, marital status, sexual orientation, etc.  So what most terminated employees do is claim that the reason they were terminated was discriminatory based upon one or more of these protected classes such as race, age, disability, etc. 

How then can an employer protect its self against such claims?  The answer is documentation.  Document, Document, Document!  So the employer must be prepared to show, prior to the termination of the employee, that the real reason for the termination was that this was a terrible employee with poor performance or that his attendance was abysmal.  The best way for an employer to demonstrate this is with disciplinary warning letters stating that the employee is a poor performer or has terrible attendance.  Courts have an expectation of fairness, meaning that if an employers is really terminating the employer for poor performance or attendance, the employer who terminates an employee should provide the employee with the reason that they are doing poorly and what they can do to improve.  All of this should be in the disciplinary warning.  The employer should then provide the employee with an opportunity to improve as well as with a warning that a failure to improve his/her performance will lead to further discipline, up to and including termination.  If they fail to improve, provide another warning and another until it is clear that you have given the employee every opportunity to improve and they refuse to change.  Then, when you terminate the employee, it will be clear to a court and/or jury who hears the discrimination case that yes, in fact, the employee’s performance and not discrimination was the actual motive for the termination.