DECISIONPOINT
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With respect to plaintiffs‘ claims of negligent training and supervision, the court held that there was undisputed evidence that the employer acted reasonably in hiring and training the staff member, and that the conduct alleged was unforeseeable. The court pointed to the staff member‘s pre-employment disclosure that he had never been convicted of a crime, never been dismissed, suspended or asked to resign from a job and never had a complaint lodged against him for sexual m olestation, abuse or harassm ent. Defendants check ed the National
Sex Offender Registry and interviewed references. There was also no prior instance of any behavior that would lead them to suspect a problem with the staff member‘s job performance or conduct with other employees or third parties. Additionally, while there was some factual dispute about the employers‘ policies that prohibited staff m em bers being alone with cam pers, oral testim ony from other staff m em bers established that the em ployer had effectively communicated this prohibition.
LEARNING AND KEY CONSIDERATIONS
Workplace violence includes not only acts and threats made by employees against other employees, but also includes acts by third parties against employees and acts by employees against third parties. It is incredibly important for employers to take a holistic view of workplace violence issues and to put in place procedures and policies that deal with workplace violence in all its various forms.
Here, the employer could have been liable for the acts of this employee if the employer had failed to take reasonable steps to prevent the alleged violence that occurred. The employer‘s pre-employment screening of the staff member and the steps taken by the employer to create and safe environment--not only for their own employees--but for their customers (the campers) were crucial to the avoidance of liability.
The court‘s decision in this stands for the basic proposition that employers will not be held liable for workplace violence which was not foreseeable. If, however, the employer had been aware of some transgression in the staff member‘s past that may have indicated a propensity to commit violence, of if the employer had not taken reasonable steps to safeguard the third parties under their care, the result in this case would have been radically different.
This is an important lesson that extends beyond the world of summer camps or other employers who are charged with the caring for minors. Any employer who expects interaction between their employees and third parties, especially in areas or environments that are outside of the immediate view of supervisors, such as on-the-road sales personnel, employees that make home visits and even company-sponsored social events, needs to take steps to evaluate the risks of workplace violence in those environments. Moreover, that evaluation needs to consider the risks posed to employees as well as the risk posed by employees to the safety of third parties.
DecisionPoint case analysis contributed courtesy of Seyfarth Shaw LLP:
James L. Curtis
jcurtis@seyfarth.com 312.460.5815
Meagan Newman
mnewman@seyfarth.com 312.460.5968
LEGAL ISSUES - continued Wrongful Termination Claims Fail Where Employer Thoroughly Investigated Work Altercation
In Kodwavi v. Intercontinental Hotels Group Resources, Inc., a hotel employee, allegedly used profanity towards his supervisor, grabbed the supervisor‘s waist and threatened him. After a thorough investigation of the altercation by the hotel‘s human resources department the employer concluded the employee acted aggressively and made unwelcome physical contact in violation of the hotel‘s ―zero tolerance‖ workplace violence policy and terminated the employee. A federal district court in California determined that the hotel employee was not entitled to have his claims of national origin discrimination and retaliation go to a jury.
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