Question: How do employers protect against departing employees who may become violent?

Answer:

Perhaps you read about the woman who recently put her HR manager in a choke hold and stabbed her with a pen when she became angry when leaving employment. Mind you, this employee was resigning, not being terminated, and she had turned in a broken computer tablet. The employee became enraged when HR told her she would have to pay $500 for the tablet to be fixed pursuant to Company policy. The departing employee fled the scene but police later located her and apparently charged her with assault and battery.

The best advice in these circumstances is to trust your instincts. If you know you are going to have a confrontation with an employee (such as a meeting to terminate or confront an employee about a difficult topic), take steps to mitigate risk. Here are some steps to consider and/or implement:

If you anticipate a strong reaction, do not meet with the employee alone. Be sure there are two of you present.
Ensure at least one other person knows when and where you are meeting.
Have a desk, table or other piece of furniture between you and the employee, to help define boundaries.
Consider having security on site, in case the meeting goes sideways.
If the departing employee makes a threatening comment, such as, “You’ll be sorry for this,” take it seriously. Immediately consult with colleagues, counsel or someone else with expertise dealing with such situations for guidance.
Try to disarm a threat or dispel anger. “Joe, that sounded like a threat. I understand that you must be angry. I’d like to support you in this transition.”
If a meeting becomes hostile, cut it short and try to get yourself out of the situation as quickly as possible.
Situate yourself in the meeting room such that you can leave easily, without having to pass or get around the angry employee.
Ensure colleagues outside the meeting room are aware of your concerns and are on alert to come to your aid, should the need arise.
Consider installing a panic button in the room where difficult HR meetings occur and at your reception desk, so security or the police can be summoned quickly in case of emergency.
Minimize reasons why the departing employee may have to revisit the workplace. For example, mail the final paycheck and offer to have personal belonging collected and delivered to the departing employee’s home.

About the author: Laura Liss is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that affect their businesses.

Question: Do employers need to worry about their employees’ ringtones?

Answer:

Apparently, yes, if the ringtone is sexually explicit. An employee of Trane U.S., which is a subsidiary of Ingersoll Rand, recently filed suit in federal court alleging that her supervisor intentionally subjected her to a sexually explicit cellphone ringtone. The employee claims that she let her supervisor know that the ringtone, which mimicked the sound of a woman having an orgasm, offended her. Rather than changing the ringtone, the supervisor purportedly kept using it and also tried to engage her in sex talk. The employee further alleges that HR failed to investigate her complaints and then that she was retaliated against in the form of various adverse employment actions, which culminated in her termination. Trane now faces litigation for sexual harassment and retaliation.

Now more than ever, employers must provide workplaces that are free from sexual harassment. This includes monitoring employees’ electronic devices, even if they are personal devices. If an employee wants to use an inappropriate or potentially offensive ringtone outside of work, that’s probably not the employer’s business, even though it may not show the best judgment on the employee’s part. On the other hand, when those types of ringtones are used in the workplace, it can quickly become the employer’s problem. Consider implementing a policy against disruptive or offensive ringtones in the workplace. Alternatively, consider whether it may be appropriate to have a policy that requires that cellphones be kept on silent or vibrate mode during working hours. This combats both potentially offensive ringtones, as well as the annoying co-worker who leaves her desk without her cellphone and makes her neighbors endure a cycle (or many cycles) of distracting rings.

About the Author: Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

Question: What should employers say about employees who are fired?

Answer:

Typically, the reasons for separation are kept confidential. Both internally and externally, employers tend to provide innocuous explanations, such as “Joe has left the Company to pursue other career opportunities. We thank him for his service and wish him well.” With the #MeToo movement, we have seen a shift in the way information about terminations is shared. For example, when NBC fired Matt Lauer, not only did NBC open the Today show with an announcement about the decision, but also they included some details around what is normally sensitive personnel information. NBC explained that it had fired Lauer for “inappropriate sexual behavior,” that NBC had received a detailed complaint from a colleague just two nights before the firing and that the complaint represented “a clear violation” of the Company’s standards. NBC further explained that while it was the first complaint about Lauer in more than 20 years at NBC, the Company was “presented with reason to believe this may not have been an isolated incident.”

Given the current sexual harassment climate, NBC had its reasons for trying to get in front of this situation, reasons that may not apply to the average or lower profile employer. Generally, employers do not explain why an employee is no longer employed. Employers need to be mindful of violating the departing employee’s privacy and dignity, as well as opening the Company up to a potential defamation claim. Employers also do not want remaining employees to feel that their own personnel situations may be shared, should they have performance issues down the road.

However, in certain circumstances, employers may feel a need to make an example of an employee. If an employee is a known harasser and an employer’s investigation reveals that this misconduct is rampant and well-known, this may factor into the post-employment communications. Practically speaking, in this type of situation, the remaining workforce already knows why the harasser suddenly is no longer with the Company. If the employer follows the termination with some reminders of how seriously the Company takes rule violations and a refresher course on anti-harassment, the employer can more subtly set an example of this employee without ever directly commenting on the reason for termination.

Often it is best for companies to remain neutral or silent on the circumstances of a termination. When an employer feels strongly that it should comment on a termination, for example, to show commitment to a safe and comfortable workplace, the amount of detail revealed and the words used should be carefully chosen. Any communications or messaging regarding terminations should be prepared in consultation with the Company’s human resources, legal and public relations teams, as applicable.

Question: How do employers limit holiday party liability?

Answer:

There are several precautionary measures employers can take to limit risk this season of holiday parties:

Consider the day of the week. Weekday holiday parties are less intrusive on employees’ personal time and are less likely to get out of control, than holiday parties that fall on the weekend.
Although making attendance mandatory may be tempting for various reasons (such as wanting a good turn out or the desired camaraderie that may result from employees socializing outside of work), resist the temptation. This could put the party within the course and scope of employment, which could both trigger potential overtime obligations for hourly employees and coverage under your workers’ compensation policy if there were an injury at the party.
If you choose to serve alcohol, limit consumption by:
- allowing each person a limited numbers of drink tickets,
- ensuring your bartenders are prepared to cut off employees if they become intoxicated,
- only serving beer and wine or a specialty cocktail that is easy on the alcohol content, or
- stopping serving alcohol an hour before the end of the party.
Be cognizant and respectful of different religious beliefs, so you do not offend or discriminate against anyone. Be inclusive by calling it a “holiday party” rather than “Christmas party.”
Especially in the current sexual harassment climate, be mindful of activities at the party that might lead to inappropriate conduct or banter. Skip the mistletoe.
Consider providing transportation after the party at the Company’s expense to discourage drinking and driving. Encourage (and possibly pay for) taxis or Ubers or use designated drivers to get people home safely.

Now that those bases are covered, have a fun and worry-free holiday party!

Question: How often should employers conduct anti-harassment training?

Answer:

Harassment prevention training should be part of the on-boarding process for new hires and then, ideally, should be conducted annually thereafter. If not annually, such training should be held at least every other year. From the time employees join your company, you want both to set the stage as to what is considered appropriate conduct in your workplace and to establish a culture of openness so employees know what to do should a problem arise.

If your company has a dedicated human resources department, employees should be directed to bring harassment concerns there. If your company does not have a dedicated HR department, you should select an appropriate management-level employee to handle harassment and other complaints. Businesses want a clear and known protocol in place for such complaints and to make that complaint process well-known through training and by disseminating the harassment policy and complaint protocol. Businesses are much better insulated from liability if these proactive steps are taken and the alleged victim chooses not to avail him or herself of the complaint process, than businesses that put their head in the sand on the harassment front.

A common employer concern is that conducting harassment training may lead to an uptick in complaints. In fact, this sometimes can be a reality of conducting training because employees are more on the look out for inappropriate behavior or perhaps more sensitive to conduct that might otherwise roll off their backs. But let’s face it, in the current climate with new high profile allegations of sexual harassment coming to light on a daily basis, this topic already is on the forefront of people’s minds. Companies should be proactive in letting their workforces know that they will not stand for inappropriate conduct. This includes conducting regular, optimally annual, harassment prevention training.

Question: What steps should employers take to prevent sexual harassment in the workplace?

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Answer:

There are three key things employers can do: 1) have a strong anti-harassment policy in place to address various forms of harassment; 2) train the workforce on the policy and steps employees and managers should take should they be subject to or learn of potential sexual harassment; and 3) foster a culture of openness so employees feel comfortable bringing such allegations to light. Given the high-profile allegations of sexual harassment in the news the past few weeks, many employers are taking a closer look at their workplace to ensure they have taken sufficient measures to address potential sexual harassment.

An anti-harassment policy should explain what harassment is, make clear that harassment will not be tolerated, and describe what employees should do if they are subject to or become aware of harassment. The policy also should include a detailed system for making complaints of harassment, including providing more than one avenue to make the complaint.

Conducting training for all staff also is critical. Employees should be trained on acceptable conduct in the workplace, the details of the anti-harassment policy, what employees should do if harassment arises, and the potential consequences for engaging in harassment. In addition, managers should be trained on how to identify potential harassment and what to do if a complaint is brought to them. Conducting training lets the workforce know that the company take harassment very seriously and that harassment is unwelcome in the workplace.

We have seen from the serious and years’-old allegations coming from Hollywood how detrimental a culture of silence can be. Employers should strive to have the opposite: a culture of openness where employees know they can come forward with their concerns and that those concerns will be taken seriously. Whether those concerns are big or small, employers should recognize the benefit of having them reported so they can be promptly investigated and appropriately addressed.

If there is any silver lining to the high-profile allegations of harassment in the spotlight right now, they have given some pause to employers and employees alike. This has provided a good opportunity for everyone to take stock of their workplaces and to take proactive steps to ensure that the anti-harassment bases are appropriately covered.

Question: Should employers drug test their workforce?

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Answer:

In large part, this decision may depend on the industry and the impact (either known or suspected) that drug use is having on the business. Drug abuse is a growing challenge in American businesses, particularly due to misuse of pain relievers. According to the National Safety Council, healthcare costs for employees who misuse or abuse prescription drugs are three times higher than for an average employee.

Dealing with drug use and deciding on whether to use drug testing in the workplace can be difficult but, as a baseline, employers always have a right to prohibit employees from being impaired at work. For manufacturers, impairment at work can be particularly risky. Inattention to detail or one wrong move can lead to catastrophic injuries. In an office environment, drug use may negatively impact attendance and productivity, but is less likely to create a danger to the drug users or their colleagues. By contrast, with workforces who regularly drive for business (such as trucking companies or businesses with outside salespeople), drug use can create a danger both to the employee and others on the road.

The decision whether to use drug testing in the workplace is not getting any easier. For example, medicinal marijuana use is now legal in 29 states and the District of Columbia. So what do companies do: drug test but not test for marijuana or, test for it, but do not terminate if the employee has permission for medicinal marijuana use? This is not so simple. Employers have no control over what time of day an employee may use medicinal marijuana or prescription drugs. Companies may need to decide if they want to curb drug use altogether or simply address impairment at work. If the latter, this can be tough because drug testing may not be able to make these type of distinctions.

One way to curb drug abuse in the workplace is to use random drug testing, While job applicants may be able to clean up their act in order to pass a pre-employment drug test, random drug testing serves as an ongoing deterrent. If employees know that the Company has retained a third-party to (1) select employees at random on a regular basis (such as monthly), and (2) conduct the tests, then employees may be more inclined to stay clean or avoid being impaired during working hours.

Employers who decide to drug test need to be prepared to follow through on the drug test results. This can be challenging if, for example, a random drug test uncovers drug use in a high performing employee, whose drug use was not affecting productivity. Whether or not a business decides to drug test, employers should consider enacting clear company drug policies (either zero tolerance or something less stringent), training supervisors to identify signs of drug abuse, and using employee assistance programs (EAP) to help address these issues in the workplace.

Question: We have an employee who has body odor, what do we do?

Answer:

If you’ve dealt with this issue in your workplace, then you know it’s a delicate one. HR (or the person who wears the HR hat) usually has the unenviable job of addressing such issues.

You should give the employee fair warning and allow the employee a reasonable chance to correct the issue. The employee needs to understand that body odor negatively affects other employees and reduces the quality of the work environment. This in turn can impact the productivity of the employee’s team. You want to convey to the employee that failing to take steps to correct the problem shows a disregard for the team.

As long as the body odor is not being caused by a medical condition, you can discipline (or even ultimately terminate) an employee for body odor. Most employees are at-will, meaning you can terminate them at any time, with or without case, with or without notice. Smelling bad is not a protected class, but the employee may have a disability that causes body odor. Thus, you should try to ensure that the employee does not have a medical condition that is causing the body odor before administering discipline.

Employers can address the issue via a dress code policy, which includes requiring good hygiene in the workplace. While it seems obvious, having a policy requiring employees to use good hygiene and to come to work wearing clean and professional attire, can be helpful. When the issue arises, it gives you a policy to rely upon, which sometimes can be easier than addressing the issue in the abstract.

While on the topic of odors, even good odors, such as cologne, perfume, strong lotions, and air fresheners can bring challenges in the workplace. While one employee may think a certain smell is pleasant, others may not agree and even suffer allergic reactions from them. Strong smells can be distracting or even create health issues for employees. For example, powerful scents can be migraine-inducing for some. It’s a good idea for your dress code policy or other similar policy to address scents in the workplace, including both good or bad scents. Fragrances should be avoided or used in moderation only. Some employers even implement a scent free zone at work. That may sound extreme, that is, until you have to deal with such a conflict.