What to do About Workplace Violence

Unfortunately, one of the possible responses to a reduction in force, and other internal and external stressors, is workplace violence. Employers can be liable to employees and customers for their negligence that allows workplace violence to occur. What steps can employers take to protect their employees and themselves?

Many circumstances can result in violence in the workplace. A termination of employment, reduction in force, demotion, poor review , internal complaint, or any adverse employment action can cause a violent response. Outside stressors such as financial, health or family concerns can cause problems in the workplace as well. Domestic violence often carries over into the workplace. Moreover, some businesses, such as healthcare or late-night retail, are more prone to incidents then others.

 

Employers can take important steps to preventing violence in their workplace.

1.   During the hiring process, an employer should:

            -     Centralize recruiting, interviewing and hiring.

_    Review all info before hiring.

-     Investigate all gaps.

-     Conduct background checks.

-     Consider non-discriminatory selection tools.

-     Extend offers pending background results.

-     Record investigative & screening efforts.

2.   Training: Employers should train supervisors in identifying and responding to risks of violence in the workplace, in the same way employers train supervisors on other safety risks, such as drug use, fire and accidents. 

3.   Supervision: Communicative supervison can give a disgruntled employee an outlet before she or he turns to violence. Employers should ensure that employees know how to voice their concerns via an Open Door Policy and that managers know how to resolve disputes.

4.   Monitoring employees: With proper notice to employees and implementation of policy, employers should take full advantage of employee monitoring, including drug testing; accessing employees use of email and the internet; searches; and, video monitoring. While employers should make sure they do not exceed the appropriate privacy boundaries of such monitoring, employers need to be aware of what their employees are doing at work.

5.   Don’t ignore employee personal issues that enter the workplace. Employers should require employees to advise them of any temporary restraining orders to which they are a party.

6.   Emphasize individual responsibility. Employers should train employees on the importance of taking responsibility for their own behavior and safety in the workplace.

7.   Implement policies prohibiting workplace violence. Employers also should implement other policies related to workplace safety, including policies on visitors, confidentiality, use of interactive systems, video and other monitoring and workplace searches.

8.   Be sensitive to warning signs from employees, such as:

                 -           Threats of harm (direct or veiled).

                 -           Intimidating and/or harassing behavior.

-           Carrying and/or flashing weapons.

-           Paranoia (“They’re out to get me”).

-           Moral righteousness (“I’ve been wronged”).

-           Can’t (or won’t) take criticism; does nothing wrong.

-           Holds a grudge, especially against management.

-           Expresses desperation over work, family, personal.

-           Has history of violent behavior (on or off job).

-           Fascinated with incidents of workplace violence.

-           Approves of violence by “screwed” employees.

-           Ignores co-worker safety.

-           No life outside of work.

-           A loner; “he was a quiet man.”

9.   Assess readiness. Employers should assess physical and electronic security (office/home); internal resources (HR, legal, risk management, Media/PR); and external resources (police, security, legal, EAP, outplacement) regularly.

10. Manage separations. Whether performance or economic-driven, employers must manage separations appropriately. Employers should communicate separations humanely and offer assistance such as severance, EAP and outplacement services where possible to ease the transition.  In addition to protecting the interests of the departing employee, employers also should protect their own interests by cutting off access to the interactive systems, customers, and the premises. Employers can use confidentiality and non-solicitation agreements and covenants-not-to-compete to protect their business interests.

When confronted with a suspected incident of violence, employers should: 

·     Focus on the employee’s conduct, not on his/her motivation!

         Treat like violators alike.

         Weigh the risks of being wrong.

When in doubt, kick them out.

Top Ten Tips for Terminating Employees

1.  Don't make snap decisions to terminate an employee.  Suspension is a better immediate response.

2.  Investigate the facts first. Don't rely on assumptions.

3.  Review the personnel file before a termination. Does the file (prior evaluations, warnings) support the decision?

4.  Review written policies. Is the termination consistent with policy? If not, does the policy need to be revised?

5.  Draft appropriate policies if yours are lacking.  Having a formalized procedure can be an important tool to help supervisors handle separations appropriately and consistently (but as with all policies include them in a handbook with an at-will disclaimer that the policy does not create a contract and can be changed.)

6.  Treat the employee respectfully during the process.  How the message is delivered can be as important as the message itself.

7.  How were other employees in similar circumstances treated? If they were treated differently, what is the objective and defensible reason for terminating this employee? Can the employee claim discriminatory treatment?

8. Document performance issues as they happen.  Progressive discipline is easier to defend then immediate and unsupported terminations.

9.  What is the employee's status? Has the employee recently taken a protected leave of absence or made a complaint that could be the grounds for a retaliation claim?

10.  Train employees on personnel issues, especially managers and supervisors.

WARNing - Part Two

Like New Jersey, New York also has recently implemented changes to its plant closing law. The NY WARN requires covered employers to provide affected employees with at least 90 days notice of an employment loss. The NY WARN applies to employers with 50 or more employees (WARN applies to employers with 100 or more employees) and requires 90 days notice (WARN requires 60 days). The NY WARN also defines mass layoff more broadly than WARN (layoff of at least 50 full time employees and 33 percent of the workforce, or at least 500 employees). Under NY WARN, a mass layoff is a reduction of force of at least 25 employees and 33 percent of the workforce or at least 250 employees.

NY WARN also more broadly defines "plant closing" as the permanent or temporary shutdown of a single site of employment resulting in an employment loss for 25 or more full time employees in a 30 day period. Federal WARN defines plant closing as a loss of 50 or more employees in a 30 day period.

Like the NJ law, NY WARN requires notice to employees and their collective bargaining representative.

Employees aggrieved under NY WARN can seek relief from the Dept of Labor or through a private lawsuit. Penalties include backpay up to a maximun of 60 daysor half the number of days the employee was employed by the employer, whichever is lesser.

In sum, the new NY WARN law applies to smaller employers and smaller reductions of force, and requires more notice, than its federal counterpart.

WARNing - Don't Forget Local WARN Acts - Part One

The federal WARN Act generally requires employers with over 100 full time employees to provide 60 days notice in the event of a plant closing or mass layoff. Many states have their own versions of WARN as well and businesses implementing covered employment changes must make sure to comply with all applicable plant closing laws.

For example, New Jersey recently implemented the Millville Dallas Airmotive Plant Job Loss Notification Act. This new law requires notice to the Commissioner of Labor and Workforce Development, the chief elected official of the municipality where the establishment is located, each employee to be terminated and the collective bargaining representative. Note that federal WARN requires that each employee receive notice only if not represented by a union.

The penalties under the NJ law are more draconian than under the federal counterpart. Under WARN, liability is reduced based on the amount of notice provided by the employer. Under the NJ law, failure to give the full 60 days subjects an employer to the full penalty, which is one week of severance for each full year of employment in addition to any other employer-provided severance. While back pay received under WARN is credited against the NJ sevevrance entitlement, there is no 60 day cap.

Moreover, NJ law does not recognize the faltering business and unforeseen business circumstances exceptions recognized under WARN, which is particularly significant in the current economic climate. Even loss of a major customer will not excuse compliance with the NJ requirements.

In addition, the "State Response Team" can provide workers with information regarding their legal rights, in addition to job placement counseling, which could influence an employee to bring a claim.

Finally, under the NJ law, an employee who is offered a job in NJ and within 50 miles of the establishment does not suffer an employment loss. WARN requires the new job to be within reasonable commuting distance. Covered businesses in NJ need to comply with both.

More on Retaliation Claims

Not only the victims of alleged harassment or discrimination are protected for exercising their right to complain and be protected.  Employees who oppose such practices or participate in an investigation of a harassment or discrimination claim also are protected from retaliation for those activities.    The Equal Employment Opportunity Commission ("EEOC") recently filed suit against Sara Lee Corp. for firing an African American employee employed at its Houston facility who complained about allegedly discriminatory practices directed at her and other employees.  The director of the EEOC's Houston office commented, "Even if an alleged discriminatory action is found to lack merit, the EEOC will still hold employers accountable for any retaliation related to it."

An employee's stated dissatisfaction regarding diversity efforts alone, however, may not be protected activity.  For example, in Hood v. Pfizer, the Third Circuit held that an employee who asked at a meeting "why more wasn't being done to promote diversity within [his department]" did not complain about discrimination but rather expressed a generalized concern about the extent of his employer's affirmative diversity efforts.

As part of any investigation of a harassment or retaliation complaint, employers must ensure that the complainant and any employee participating in the investigation are protected from retaliation.  The best way to prevent retaliation is to keep complaints as confidential as possible - if managers and employees don't know about a claim, then they can't take an adverse action related to it.  While absolute confidentiality cannot be promised, only those with a need to know should be privy to a complaint.  In addition, once the complaint is resolved, even if it is determined to be without merit, as I stated in my last post - it ain't over.

It Ain't Over When It's Over

 

 

Employers who take an adverse action against a current employee who brought a complaint or participated in an investigation of a complaint by another employee may face a claim that such action was in retaliation for protected activity. Federal and state anti-discrimination laws prohibit retaliation against an employee for protected activity to the same extent as the harassment or discrimination itself.  An employee may even have a claim for retaliation where the underlying claim is resolved or unfounded.

In Burlington Northern v. White, the United States Supreme Court expanded the meaning of retaliation under Title VII in determining that the anti-retaliation provisions were not limited to those actions that affect the terms and conditions of employment. Rather, retaliation can include acts that go beyond those that are employment related, such as conduct by co-workers.

In a recent New Jersey state court decision, Fernando Roa et al v. LaFe and Marino Roa, the Appellate Division, consistent with Burlington Northern, held that the plaintiff could pursue his claims for actions that occurred after his termination ended. Specifically, plaintiffs alleged that their former employer unfairly claimed that the plaintiffs were dismissed for misconduct when they applied for unemployment benefits. In addition, Mr. Roa claimed that the company improperly cut off his health benefits, which he did not discover until after he left employment.

In addition to the conduct alleged in the Roa case, employers need to be careful of other post-employment conduct, such as negative references.

In light of the judicial expansion of the type of conduct that can constitute retaliation under anti-discrimination laws, employers who take adverse action against an employee who has complained about harassment or discrimination, participated in an investigation or engaged in other protected activity need to make sure there is no causal link. If an employee presents a performance, attendance or other issue, then managers should promptly and progressively discipline the employee and not expect to initiate such action about a prior problem following a protected complaint by the employee. Employers also should be aware of whether any employees slated for a lay-off have engaged in protected activity that could be the basis for a retaliation complaint. Such steps protect employee rights and protect employers from retaliation claims that ultimately may be more challenging to defend than the underlying harassment or discrimination allegations.

Agreements not to Reapply

As part of a separation agreement and release in exchange for severance, many employers include a provision that the separated employee will not reapply or be re-employed.  Such a provision can protect an employer from retaliation or other claims in the event the employer declines to rehire the separated employee if s/he reapplies.  It is important that "employer" in the context of a no-reemployment clause be defined to reflect properly the understanding of the parties - which entities are covered?  The clause should properly protect the employing entity but not be too broad.

The Equal Employment Opportunity Commission recently filed suit against AT&T, Inc. accusing it of retaliation against older workers for refusing to rehire them.  This suit is consistent with the EEOC's position that no-reemployment clauses can be per se retaliatory, even where they are consideration for a release agreement.  

In order to protect themselves in the event of a challenge, employers should make sure that no-reemployment clauses do not have a disparate impact on any protected group (such as older workers) and include a severability clause in any separation agreement to prevent invalidation of the release in the event one clause is stricken.

To Everything There is a Season

Guest Entry:

To Everything There is a Season"

-the Byrds    

Just like the weather, every business has its seasons.  As we wrap up the summer, you may be entering your busy season.  Hopefully, you have taken steps earlier in the year to be ready, including:

  • Developing a Recruiting Process
    Including set questions, assessment tools, and management training to assist with Title VII, Executive Order 11246, and state anti-discrimination law compliance
  • Updating Job Descriptions
    Outlining the responsibilities, requirements, and FLSA classification of each job to improve productivity and reduce exposure to FLSA and ADA and other federal and state anti-discrimination laws
  • Designing a Performance Evaluation Program
    Including templates, process, and employee and managerial training so that employees receive formal, fair, and regular feedback on their performance

Is this a slow season for your business?  If so, then now is a great time to take the proactive HR measures that you just can't seem to get around to during busier times.  These include:

  • Anti-discrimination/Non-harassment Training
    Annual training of managers and employees on the company's non-harassment policy and procedures helps minimize employer exposure to Title VII, ADA, ADEA, and state anti-discrimination laws and improve morale and productivity in the workplace
  • Audit of personnel files and I-9s
    Assists with IRCA, Title VII, ADA, ADEA, and state anti-discrimination law compliance 
  • Handbook Updates
    Communicates company policies and incorporates federal and state laws including 2009 updates to the FMLA, ADA and NJ Paid Family Leave
  • HR and Facility Audit
    Identifies gaps in the HR structure and opportunities to close these gaps as well as potential exposures to violations of Title VII, ADA, ADEA, and state anti-discrimination laws

 

Of course, regardless of what "season" you're in, from a HR professional's point of view, it's never the wrong time to start on any of these initiatives. 

Cristina L. Amyot, SPHR

President & CEO

EnformHR

125 Half Mile Road, Suite 200
Red Bank, NJ 07701

Office: 732-534-7844

www.enformhr.com

Cristina L. Amyot, SPHR is the President and CEO of EnformHR®, LLC a Human Resources firm specializing in helping companies protect and grow their business. She can be reached at 732-534-7844 or camyot@enformhr.com.

Telecommuting

Allowing employees to work remotely can be a RIF-alternative that saves employers expenses for overhead, rent and facilities.  In addition, it can be a low or no cost benefit to retain and recruit talent when other benefits or compensation may be cut.  It can also save employees computer expense and time. 

When considering either a specific request for telecommuting or the implementation of a telecommuting policy, employers should look at the following:

•           Is the individual employee and the work s/he performs suitable? Has the employee’s in-office performance been satisfactory? Is the employee reliable and a good communicator?

•           Can the employee’s supervisor manage a telecommuting relationship? Does s/he have the time? Is s/he a good communicator and evaluator?

•           What will be the impact on the rest of the workforce? Will other employees resent the relationship? Will there be a flood of requests? Is there capacity to provide in-office support to the telecommuter?                       

            •           How will the employer respond to the risk of liability for injury to the employee or third-parties in the employee’s home or damage to equipment?

 

Telecommuting can raise many problems that need to be addressed before implementing a policy or permitting such an arrangement. First, in order to protect itself from liability for injuries, the employer needs to make sure that the employee is in a safe work area. The employer also needs to evaluate the employee’s performance and productivity through time recordation and appropriate supervision. It is critical that the method and frequency of communication with supervisors, co-workers and clients or customers be established. In addition, the employer needs to ensure that its confidential and proprietary information and interactive systems are secure. Finally, other legal issues to consider are whether the employee can work from home during a leave of absence; whether there are tax, jurisdiction, or policy implications when employees work in another state; and, whether there is an applicable collective bargaining agreement.       

 

One of the most significant legal concerns is whether telecommuting is a reasonable accommodation of a disability under the Americans with Disabilities Act (“ADA”) or other applicable anti-discrimination laws. Disabled employees must be able to perform the essential functions of their job, with or without reasonable accommodation, in order to be protected by the ADA or similar state laws. While employers may assume that regular attendance is an essential job function, it may not be if telecommuting is an option, whether based on policy or past practice. 

 

The Equal Employment Opportunity Commission suggests that the following factors be considered in determining the feasibility of an employee working at home:

 

            1.         The employer is able to supervise the employee adequately;

            2.         Any duties require use of certain equipment or tools that cannot be replicated at home;

            3.         There is a need for face-to-face interaction and coordination of work with employees;

            4.         There is a need for in-person interaction with outside colleagues, clients or customers; and/or

            5.         The position requires the employee to have immediate access to documents or other information located only in the workplace.

 

Under the ADA regulations and various court decisions, reasonable accommodations run a broad spectrum including leaves of absence, reassignment, changes in work schedule, “light duty” work, transfer to a vacant position, and modification of work area. Employers need to consider whether they can provide other accommodations that enable employees to perform their essential functions in the workplace, rather than granting a request to work from home, or whether they can truly demonstrate that allowing employees to work from home would constitute an undue hardship.   

 

In order to address the foregoing concerns, employers should implement an adequate, effective telecommuting policy, which:

 

•           Provides eligibility criteria: job type, skills, performance

•           Addresses safety and liability issues, including guidelines for the work area and use of equipment and supplies

                •           Requires regular communication and interaction, including business and social office events

                •           Restricts child (or other dependent) care while working

                •           Addresses compensation, time recordation and reimbursement of expenses

•           Requires confidentiality and security of interactive system

•           Provides guidelines and requirements for work assignments, attendance and work hours

•           Provides for “results-oriented” evaluation of performance

•           Addresses application of Company policies, including the Employee Handbook

                •           Requires employees to review on-site statutory notices

•           Maintains the right of the employer to end the arrangemen

 

In addition to implementing a policy, an employer also should train the employees, co-workers, support staff and supervisors involved in the telecommuting arrangement. Employees should be provided with guidance on applicable policy; setting up a home office; resisting distractions; adjusting their families to the arrangement; use of interactive systems and equipment; and, maintaining communication. Employers should instruct managers how to identify good candidates and positions; manage varied work schedules; assign work; monitor work performance, attendance and hours worked; maintain communication; and use interactive systems. Support staff and co-workers should understand work assignments and communication.

 

If an employer is responding to an individual request rather than implementation of a policy, an individual agreement may be appropriate. Such an agreement should include: the employee’s agreement to follow Company policy; the employer’s right to end arrangement; a provision that employer rights are not limited; the supervisor’s agreement; a disclaimer of liability; and, individual requirements and performance goals. An employer, however, should exercise caution in responding to individual requests in the absence of a policy and training because all of the issues and concerns are applicable to any telecommuting arrangement, whether permanent or temporary. In addition, it is important that responses are consistent so as to avoid claims of discrimination or disparate impact.

           

Clearly, a policy stating that “the employer will respond to requests for telecommuting on a case-by-case basis” or permitting telecommuting on an informal, ad hoc basis can create many issues and possibly liability for an employer. Employers are better served by giving careful consideration to the pluses and minuses of telecommuting and establishing guidelines or agreements in advance. 

 

This article originally appeared in the June 5, 2008 issue of Employment Law 360.

Employment Policies and At-Will Employment

While progressive discipline and adherence to company policy can help an employer defend a challenge to an adverse employment action, employers need to keep in mind that, in the absence of agreement otherwise, in most jurisdictions employees are "at-will."  "At-will" employment means that employees can be terminated at any time for any reason (other than unlawful), or no reason at all, with or without notice.  Likewise, at-will employees can terminate their employment in the same manner.  In a non-union setting, employers should avoid policies that commit them to steps in imposing discipline for performance, conduct or absenteeism or responding to employee complaints.  Even with a disclaimer advising that policies are not contractual and are subject to change, employees can assert claims based on reliance, contract, or differential or discriminatory application.  It is much better for employers to retain discretion.

In addition, employers should avoid policies that are confusing and difficult to implement, or that will not be applied in practice.  Employers should reconsider policies where exceptions swallow the rule.

For more on employment policies that can do more harm than good, see my comments on SHRM's website at: www.foxrothschild.com/Newsstand/News.aspx