Published in the NH Business Review, November 7, 2009 (http://www.nhbr.com/apps/pbcs.dll/article?AID=/20081107/INDUSTRY04/811059917)
Louisa, a supervisor, contacts Henry, the human resources manager, because one of her employees, Dave, is making the other employees in the office uncomfortable. Louisa reports that Dave was recently divorced and has been going through a difficult time over the past year. He had expressed he was having financial problems which were causing him stress, and he was not happy with his last salary review. Louisa reports to Henry that while Dave did not seem to have engaged in any discriminatory harassment or physically aggressive conduct, he was irritable and aggressive in his speech. He also routinely talks about his gun collection and the number of guns he owns in general conversation. What should the company do?
Preventing disruptive, threatening, and violent behavior in the workplace is a growing concern for employers. Anti-harassment policies typically cover only conduct for protected categories of discrimination (for example: race, gender, national origin, sexual orientation, marital status, veteran status, age, disability). Accordingly, employers should develop and implement policies to reduce or mitigate the risks of general workplace misconduct.
While conflict in the workplace is normal, employers should set and enforce clear standards of acceptable conduct. Creating a culture of mutual respect can help reduce harassment and hostility in the workplace and promote a safe and comfortable work environment. As studies have shown, disruptive and hostile behavior results in reduced efficiency, productivity, and profitability of employees, poor morale, increased absenteeism, staff turnover, increased stress and anxiety, an unsafe work environment, and potential legal costs.
Factors that may lead to incidents in the workplace are varied. An employee may be feeling rejected or overlooked in not receiving a desired promotion, transfer, or raise or may be experiencing anger due to the knowledge of a potential layoff. An employee may be experiencing psychological problems, under the influence of alcohol or drugs, or suffering from stress at home. These types of behaviors of concern may come from co-workers, customers or clients, or third parties outside the office.
Establishing a company misconduct policy not only sets a clear standard of acceptable conduct in the workplace, it helps prevent disruptive behavior that disturbs, interferes with, or prevents normal work functions and activities. Examples of disruptive behavior include yelling, using extreme profanities, waving fists, and verbally abusing others. Such a policy also creates a protocol for handling threatening or violent behavior. Examples of threatening behavior include moving closer aggressively, general threats such as, "I'll get you" or "You better watch your back" as well as implicit threats such as "This isn't over" or "You'll be sorry." Violent behavior includes any physical assault and behavior that a reasonable person would interpret as being potentially violent. Examples include throwing things, destroying property, or specific threats to inflict physical harm. A policy helps minimize the potential risk of personal injuries to employees at work and reduce the possibility of damage to company property in the event someone, for whatever reason, may be unhappy with a company decision or action by an employee or about something in their personal lives.
Training and company-wide publication of a misconduct policy reinforces the company’s expectations of behavior and makes clear that disruptive, threatening, and violent behavior will not be tolerated. Employees should be told that if they receive or overhear any threatening communications from an employee or outside third party to report it at once. Employers may also consider prohibiting firearms (loaded or unloaded) and other weapons on the premises. Employee assistance programs ("EAP") also offer a cost-effective way of providing service to employees who need the support and guidance of a personal counselor for issues related to work, home or self and to the employer when it is faced with a volatile employee and not sure how to handle it. For example, EAP counselors can be available on-site when an employer is implementing a difficult lay off.
All reports of misconduct should be investigated carefully, promptly, and to the fullest extent possible. Dealing with disruptive, non-threatening behavior, will involve a very different protocol from dealing with an immediate threat of violence. When appropriate, the company should meet with the individual and set clear expectations for improvement in job performance or in the relationship with co-workers or provide additional needed resources for outside help. For specific threats of imminent violence, the course of action may include calling 911 (outside the sight or hearing of the individual), alerting others of the danger, and getting people to safety as quickly as possible. Employees should not attempt to intervene physically or deal with a volatile situation themselves.
In the above example, if it is determined that the situation is not a threat warranting immediate intervention under the policy, the company should investigate Louisa’s report to determine specifics and to obtain examples of the conduct that gives co-employees concern. Henry and Louisa should meet with Dave to discuss his behavior and the company’s expectations of behavior in the workplace. If appropriate, the company may refer Dave to a counselor or an employee assistance program or another outside resource. At any stage, the company may seek assistance from a counselor or legal counsel. The company should also follow up to ensure that expectations are met and directed changes of the employee’s behavior are made. All efforts and observations should be documented.
Mounting pressures come at employees from all directions today. Companies should be prepared. By instituting policies on workplace misconduct, companies can set clear standards of acceptable behavior and promote a safe work environment.
Jennifer Parent is a Director in the Litigation Department of McLane, Graf, Raulerson & Middleton, Professional Association. Jennifer can be reached at (603) 628-1360 or [email protected]. The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth, as well as Woburn, Massachusetts.