By: Jay Mittelman
Suppose your employee tells you in confidence that he believes one of your other workers is physically abusing his wife. The informant is concerned for the welfare of the abused spouse. He’s also concerned for his safety and the safety of his coworkers, if this alleged tendency towards violence erupts in the workplace. Certainly, this is not an unheard of situation in today’s news.
How to Respond?
You might be tempted to think it is a private matter, and ignore the possibility that it could affect your business. But once you have been given this information, looking the other way is not an option. The “general duty” clause of the Occupational Safety and Health Act says employers “have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards.”
The possibility of bodily harm caused by a violent employee, which certainly represents a potential “hazard” for your staff, becomes “recognized” if you have been told such an individual is on your payroll. Should anyone be harmed, a failure to take steps to address the risk on your part exposes you to action by the Occupational Safety and Health Administration (OSHA) as well as possible tort claims by the harmed employees.
Depending on what actually happens and who the victim is, if a potentially violent worker lashes out in the workplace you could be accused of tolerating employee harassment or discrimination. Or, under principles established in common law, you might face blame for failing to provide adequate employee supervision.
Of course, an allegation is only that, not proof. So the next task is to investigate. How can you do so without violating the employee’s privacy? In this regard, employers are somewhat between a rock and a hard place. If you have reason to doubt that the allegations are true or that they may affect your business, you could create more problems than you solve by digging deeper. Before beginning an investigation, consider such factors as:
Risk of Defamation
If an investigation became public knowledge, the accused employee’s reputation could be severely damaged even if he is fully exonerated. So before you pursue an investigation, give careful consideration to the context of the claim. Otherwise you could not only cast aspersions on an innocent person, but you could also open yourself and your company to a defamation claim.
On the other hand, if the allegation passes the sniff test, pursuing a closer look might be advisable. The path of least resistance might be to turn the matter over to law enforcement authorities. However, keep in mind that you would not be washing your hands of the entire matter by doing so, if law enforcement authorities need to explain the basis for their investigation.
If you choose to take on the investigation yourself, it will strengthen your hand if you have a formal policy in place which addresses off-site behavior as it relates to your business. Be sure you are confident that you have considered the basis for the accuser’s charges before raising the matter with the accused. Also, inform the accuser that it is critical to keep the matter in strictest confidence.
When asking the employee about the allegations, be sure you approach the claim with an open mind, so it is clear you have not prejudged him. Explain why this situation is relevant to his relationship to the company, and cite any pertinent employment policies that govern this issue.
Finally, reassure the employee that the investigation itself will remain confidential.
If you do not turn up information which supports the allegations, the matter is closed. If, instead, the allegations appear valid, your next move will be dictated by the severity of the problem and the likelihood it will impact your workplace.