| Editor's note: The following is a hypothetical case study, with a fictional manager and a fictional business, which provides a way for executives to learn more about some of the situations they or their companies may face. Executive Legal Adviser research editor Jeanne Graham wrote the hypothetical, and an attorney familiar with the kinds of problems described offered suggestions to remedy the situation. The opinion is not intended to be legal advice. To submit suggested hypotheticals for "Case in Point," go to www.executivelegaladviser.com.
The Proper Protocol? Martin is in a quandary. At a meeting with his executive staff, Martin overheard an offhand remark by one of his managers regarding threats a marketing employee has been receiving from his estranged spouse. In addition to leaving verbal threats on the employee's company phone, the estranged spouse apparently followed the employee after work on a recent night, and smashed the employee's vehicle windshield while the employee was shopping at a grocery store. The employee believes his estranged spouse used a baseball bat to destroy the windshield but did not file a complaint with the police department. The marketing employee works the second shift — from 1 p.m. to 9 p.m. — in the company's call center. Martin is worried that the estranged spouse poses a danger not only to the particular marketing employee, but to other employees as well. Although the employee is one of the department's most productive, Martin wonders whether the company's best course of action would be to terminate the employee, thereby avoiding the risk of exposing other employees to the potential danger posed by the estranged spouse.
ANSWER
Martin needs a protocol to guide his managers in assessing and responding to the risk of workplace violence, including violence threatened by an employee's intimate partner.
While we assume here that Martin's company operates only in Texas, many Texas-based companies operate nationally. Therefore it is important to note that more than 30 states — not including Texas — have laws that provide leave to deal with domestic violence issues, such as time off to secure a restraining order. Three states protect an employee in certain circumstances from discharge solely because the employee is a victim or has obtained a protective order. Working in Texas, however, Martin's employee does not have statutory protections. Martin's honestly held concern that domestic violence might spill into the workplace permits discharge in Texas, absent a contract or collective bargaining agreement that requires good cause for discharge.
Even in at-will states such as Texas, however, the legally permissible action and the best course of action from an operations perspective may diverge. What is certain is that the more information Martin has about the possible threat to his employee, the better Martin can assess risk for the workplace.
The protocol Martin's company adopts should include the opportunity to self-report a threat without automatically losing one's job. Not only is the threat of violence by an intimate partner ordinarily embarrassing to report, but an employee who perceives that he risks unemployment if he reports such threats is far less likely to disclose the threat at all. Thus, the company's protocol should reflect support for the employee who discloses such circumstances.
Martin's company's response protocol should be published via handbook or intranet platform so that employees will know the rules and can trust they will be followed. It should be flexible enough to cover a broad range of workplace violence issues including criminal threats and co-worker violence. There is not a one-size-fits-all solution. The confidentiality of the employee's personal circumstances should be addressed with sensitivity, but must give way to security measures deemed necessary to protect the employee and his co-workers.
Recognizing that the problem is complex and that a protocol to handle violence is not implemented overnight, what are the features of effective assessment and intervention from the workplace perspective? First, it is a multidisciplinary undertaking. A trained team including human resources, operations, security, legal and often outside psychology consultants should be ready to assess and recommend workplace security actions. An assessment team often works cooperatively with law enforcement.
Second, the safety of the employee and his workplace colleagues is the pre-eminent objective. Simple actions may reduce risk. These can include changing a telephone extension, screening calls, limiting disclosure of personal whereabouts to callers, trading shifts, changing work locations, installing security cameras, limiting access to nonpublic work areas, obtaining after-hours security, and providing reception personnel with a photograph and clear instructions on how to direct a visitor whose appearance matches the photo. In Martin's case, his employee's call center shift spans normal and late business hours. The security already in place for after-hours access might be implemented during regular work hours for an appropriate period of time. Or the employee might be moved to a different shift.
Third, depending upon the risk, actions Martin can take may include securing a commitment from the employee to cooperate in efforts to protect the workplace, such as accepting temporary leave, pursuing a restraining order and criminal charges for threatened or actual violence (e.g., the baseball bat taken to the windshield of a car), and the employee's commitment not to disclose to their estranged partner the security actions undertaken by Martin's company. This latter commitment protects against the transference of the estranged spouse's hostility to co-workers who may be perceived as conspiring with the employee.
Finally, Martin and his newly implemented assessment team should not counsel any employee on how to address violence or threats of violence outside of workplace security issues. That is a matter for the employee to address (hopefully, after consulting an appropriate professional). While Martin is facing this quandary for the first time, by implementing a flexible, well-designed protocol, Martin will be able to respond not only to defuse this instance of possible workplace violence, but his company will be ready next time, too.
Teresa Valderrama is a partner in the Houston office of Jackson Lewis, where she represents management exclusively in the practice of employment and labor law. Her practice incorporates all aspects of workplace law, from protection of trade secrets to union avoidance counseling to defense of Fair Labor Standards Act, discrimination and other workplace claims. Valderrama has practiced law in Houston for more than 20 years.
