Tyler Volm
BridgeTower Media Newswires
Employers and supervisors must be conscientious of the manner in which controversial issues manifest themselves in the workplace, because there is potential legal liability for both parties, if one or the other adopts the ostrich approach and buries its head in the sand. However, employers and supervisors can take some proactive steps to limit that potential liability. And while generally applicable to all employers, public employers and employers subject to a collective bargaining agreement will have some additional considerations.
Establish clear policies on workplace conduct
The first step in creating a safe and healthy workplace for all employees is to establish policies that encourage a respectful work environment, and prohibit unsafe and threatening behavior. Most employers have policies that prohibit harassment or discrimination based on any number of protected classes. Employers should review their policies to ensure that they encompass all currently recognized protected classes, but can also go further and encourage a generally respectful and cooperative workplace. Although the latter portion is not necessarily legally enforceable, it sets the tone for a cooperative and respectful work environment.
Employers should also adopt a workplace violence policy that prohibits physical violence, threats and intimidation in the workplace. Additionally, these policies can prohibit aggressive or hostile behavior that creates a reasonable fear of injury or subjects another person to emotional distress. Employers are also free to prohibit employees from possessing weapons of any kind on any of the employer’s premises, including the parking lot.
Both policies focus on co-worker interaction, but should also extend to customers, visitors and others that the employees may encounter while representing the company.
This section of the policy handbook should also include a discussion of the appropriate reporting channels and encourage employees to report any instances of prohibited conduct. The reporting channel must allow an employee to report around his or her direct supervisor, if that is the person engaging in the prohibited conduct, or in the event the supervisor is not acknowledging or investigating the employee’s report.
Circulate these policies and explain them
Once the employer establishes or revises these policies, it should circulate them to the workforce and explain the reasoning behind them. Employers can do this electronically, but should consider calling a meeting to discuss any major changes. This meeting also affords employees the opportunity to ask questions (though employees should also be encouraged to follow up with their supervisor, HR personnel or management with any additional questions or concerns).
Employers can also present training on these subjects, and should have employees acknowledge their attendance at these trainings on a sign-in sheet, as well as signing an acknowledgment when any revised handbook policies are circulated. Even if employers are not revising their handbooks, they can still consider calling a meeting to remind employees about existing policies, and encourage reporting violations when appropriate.
Supervisors should also be given a separate training to ensure that they understand their obligations to correct any violations or report them up the chain so that corrective measures can be implemented. Supervisors should be reminded they might face individual legal liability should they turn a blind eye to harassment, discrimination or an hostile work environment.
Investigate complaints and enforce policies
When a complaint is reported, an employer must promptly and thoroughly investigate in accordance with its policies. The investigation should include interviews of the complaining party, the accused party and witnesses, and employers should ask witnesses for any documentary evidence that supports the allegations.
The employer should then perform a neutral evaluation of all of the evidence and determine whether discipline is warranted. If discipline is administered, it should be done in a consistent fashion, based on the level of the violation. To the extent there is an ongoing conflict between two specific employees, an employer can consider bringing in a mediator from outside the workplace to help the employees work through their unique issues.
Some employees may want to make reports anonymously out of fear of retribution.
Employers should be careful not to offer complete confidentiality, or at least explain that should the person want to remain anonymous, the employer’s investigation may be hampered by its inability to further interview the complaining party, and that any potential resolution may not be catered to that anonymous person’s specific concerns.
Consider off-duty conduct where appropriate
Generally, an employer is prohibited from regulating off-duty conduct or using that conduct as a basis for discipline. The exception to this rule is when there is a connection (or nexus) between the off-duty conduct and the workplace.
There are three primary forms that this connection can take. First is where the off-duty conduct harms the employer’s reputation or business (e.g., breaches of confidentiality). Second is where the employee is unable to perform his or her duties at work because of the off-duty conduct (e.g., drug and alcohol abuse, moonlighting that leads to fatigue at the day job). Third, and most pertinent to this discussion, is when the off-duty conduct has an impact on other employees.
Other employees may refuse to work with that employee given off-duty conduct, whether harassment, discrimination, intimidation or violence. When an employer receives reliable information regarding off-duty discrimination, harassment, intimidation or violence, it has an affirmative duty to investigate and remedy the situation in accordance with its policies (just like it would if the conduct had occurred in the workplace). Ignoring the problem simply because it occurred outside of the workplace or after hours can expose the business to serious liability.
Again, prompt investigation and consistent application of discipline are keys to limiting liability.
These are just a few of the proactive steps employers and supervisors can take to limit potential liability arising from conflict in the workplace, and employers should work with their legal counsel and human resources division to customize these suggestions accordingly.
———
Tyler Volm is an attorney with Barran Liebman LLP. He focuses his practice on employment litigation and advice. He can be reached at 503-276-2111 or tvolm@barran.com.
