Category Archives: Workplace violence

SUPER BOWL SUNDAY SPECIAL EDITION: OMAHA, OMAHA! — CALLING AUDIBLES DURING WORKPLACE INVESTIGATIONS

Super Bowl Sunday: on a day when most Americans will be watching the game — or using the game as a good excuse to get their party on — some of us are reminded of the great economic engine that is the NFL. But how does it continue to increase in popularity and revenues? Should these not be declining given recent PR disasters and investigations into “deflate gate,” domestic abuse, discrimination, etc.?

Commissioner Rodger Goodell has been maligned by the media for “leading” a league that in many instances doesn’t seem to care. Team owners, however, have a different take. They see a man leading an unprecedented rise in league revenues — a leader that, after a series of mistakes, is becoming adept at calling audibles during workplace investigations.

This special Super Bowl edition of the HR Law Insider discusses calling audibles during the course of workplace investigations — when “going by the book” isn’t the best course of action to achieve the desired result.

DEFLATE GATE 

For the uninitiated — for those who have been living in a cave — “deflate gate” is the name given to the ongoing scandal involving the New England Patriots. The Patriots are accused of improperly deflating footballs prior to their recent game against the Colts. Patriots quarterback Tom Brady has said that he likes his balls less inflated. So, when 11 of 12 Patriots’ balls tested at halftime proved to be deflated and below the league approved minimum, the you know what hit the fan.

The NFL has obtained videotape of a Patriots’ ball boy entering a bathroom with the balls and emerging 90 seconds later.  Commentators have three theories as to what happened in the bathroom. Numbers one and two are too obvious to mention. The third, and prevailing, theory is that the ball boy deflated the balls during his bathroom sojourn. Yes, one can deflate 11 balls well within 90 seconds:

http://video.nydailynews.com/Done-in-40-Seconds-Newser-Deflates-12-Footballs-in-40-Seconds-28443950

There is indeed a distinct advantage to having deflated balls:

http://espn.go.com/video/clip?id=12206777

THE NFL’S INVESTIGATION: DELAY OF GAME 

One would THINK that it would take several days for the NFL to investigate and determine what happened to those 11 balls.  The investigation would include:

  • Reviewing security videotapes;
  • Interviewing Brady and the Patriots’ coaching staff (e.g. I would have Brady handle deflated balls and inflated balls and ask him various questions abut how they feel and what he likes to test his credibility);
  • Interviewing the ball boys;
  • Interviewing sideline and other personnel who handled the balls;
  • Constructing a timeline of the balls and changing inflation levels;
  • Consulting ball pressure experts; and
  • Reaching a conclusion

The NFL, however, is nowhere near reaching a decision. Among other things, the league has hired lawyers and says it needs to interview as many as 40 people!

Is the NFL stalling? I think so. Anything that will affect the NFL’s biggest prize — the Super Bowl — must be stopped or, as is the case here, delayed until after the Big Game.

The NFL has called an audible in an effort to run out the clock. And it is working. Many are already “tired” of hearing about a scandal where nothing has been proven. Brady and the Patriots are free to go forward — more galvanized than ever to prove the haters wrong — and play the game. If they win, and are later determined to have cheated, many will say that they beat the Seahawks “fair and square” and “who cares.”

The NFL is equally free to go forward with its crown jewel game. If it is later decided that the Patriots cheated, the league will “get tough” and penalize the Patriots with the loss of a draft pick or two and perhaps a fine. Painful? Yes. But relatively little compared to the decision occurring BEFORE today’s game. Such a decision would have placed the league and Patriots in an awful and awkward position.

HR LESSONS TO BE LEARNED 

No two workplace investigations are the same. Investigations are not one dimensional: WHEN to take action is sometimes as important as WHAT is decided. Timing, while not everything, is oftentimes critical in how a company’s decision is evaluated by the public, by regulatory agencies (e.g. EEOC; Department of Labor; OSHA, etc.), and by judges and juries.

So, when the next scandal hits the NFL, or when your business faces its own workplace challenge, carefully consider: how and when to take action. Usually the answer is: “methodically and right away.” But sometimes your company may need to call an audible at the proverbial line of scrimmage — deviating from the so-called book because the book was written for most, but not all, situations.

Have a great Super Bowl Sunday.  I know I will be glued to the tube being the football geek that I am.

For those not averse to some strong language, watch Burt Reynolds himself resolve a workplace dispute on the gridiron — in my favorite football movie ever:

 

 

 

 

 

WORKPLACE VIOLENCE: HOW TO DEAL WITH DANGEROUS EMPLOYEES AND EXTERNAL THREATS

For many, the thought of workplace violence is similar to that of neighborhood violence:  “that could never happen in MY neighborhood.”  Odds are, however, that during the course of one’s career, violence or the threat of violence will rear its ugly head.  This edition of the HR Law Insider is intended to help employers get ahead of violent situations. Being proactive, instead of reactive, mitigates the risk and liability associated with workplace violence.

DO NOT WHISTLE PAST THE GRAVEYARD:  EARLY RECOGNITION OF PROBLEMS

Businesses and their employees often miss obvious clues that a violent situation is brewing.  In my experience, the following red flags often occur before a situation spirals out of control:

*  Employee exhibiting bizarre or anti-social behavior

*  Spouse of employee acting aggressively in break-up or divorce scenario

*  Over the top reaction to discipline or termination

*  Emails that contain either express or implied threats

*  Anonymous emails or other communications with express or implied threats

*  Employee financial and marital life in tatters — “nothing to lose mentality”

*  Employee known to own firearms, coupled with anger issues and/or talk about using the firearms

*  Employee posting threats on social media

This is certainly not an exhaustive list.  Any number of clues will present themselves that SHOULD forewarn alert business owners and employees to prospective or active risks.

To be sure, there is often a fine line between an employee who poses a risk and one who is harmless — simply struggling with life’s challenges.  Judgment calls are sometimes very difficult.  Simply being aware of a potential threat provides conscious employers with the OPPORTUNITY to make that decision, while ignorant employers remain clueless and subject to the fates.

EMPLOYER OPTIONS AFTER A THREAT IS IDENTIFIED

Dealing with the Active Threat 

911 is the obvious choice when there is an imminent threat of harm. Employers should also have a plan in place as to (1) how they will notify employees and third parties to take steps to protect themselves while a dangerous situation is unfolding and (2) where people should go and what they should do (or not do).

In many instances, “no battle plan survives contact with the enemy.”  In a fluid situation it is thus very important to keep one’s cool, rely on one’s common sense and training (if one has training), and contact the police or other professionals.

It is prudent for employers to have legal counsel’s cell phone number on speed dial for use when the unexpected occurs.  Businesses should be comfortable knowing that they can call counsel at any moment of the day or night if a situation requires immediate action. Counsel can be used to develop an immediate plan or simply to confirm that the employer is undertaking a prudent plan.

By way of example, I was recently able to convince the police to immediately get out to a client’s property where there was an unstable, paranoid apartment resident acting bizarrely with a gun in his pocket. Before my call to the police, the police had essentially told the client they “couldn’t do anything” until something bad happened. The police removed the unstable resident within an hour and the threat was avoided.

Dealing with the Potential Threat

Hiring a security guard or off-duty police can be an effective way of dealing with a threat that is unlikely to last for more than a week or two (obviously, some employers have full-time security depending upon their location, business, and other factors).

Self-help — removing a potential threat by terminating an employee or removing someone from the workplace — is often the best option for employers confronting potentially violent behavior.  However, when self-help is impractical or unsuccessful, Arizona law provides additional options for dealing with threats.

Arizona employers can file for an injunction against workplace harassment to keep a threatening person out of the workplace.  “Harassment” means a “single threat or act of physical harm or damage or a series of acts over any period of time that would cause a reasonable person to be seriously alarmed or annoyed and includes unlawful picketing, trespassory assembly, unlawful mass assembly, concerted interference with lawful exercise of business activity…”

Injunctions are quickly and easily obtained as long as the employer presents solid evidence showing there has been “harassment.”  There is little downside to filing for an injunction because “an employer is immune from civil liability for seeking or failing to seek an injunction under this section unless the employer is seeking an injunction primarily to accomplish a purpose for which the injunction was not designed.”

There is a similar Arizona statute prohibiting cyber-harassment, also known as cyber-stalking. With the rise of the internet and social media, cyber-stalking has become a “popular” way to harass and attack employers.

One must always ask:  will seeking an injunction resolve or further inflame the situation? This is often a difficult question to answer. No two situations are alike. Employers should retain counsel to help perform a cost/benefit analysis and obtain the injunction — if that is the chosen course of action.

CONCLUSION:  BE AWARE AND HAVE A PLAN 

“If you think education is expensive, try ignorance.” Derek Bok

Businesses should take responsibility for (1) having a plan when confronted with a violent situation and (2) identifying potentially threatening situations. Employers have many tools to deal with such situations, including contacting the police, calling legal counsel, engaging in self-help, hiring a security guard, and obtaining an injunction against harassment.  A small amount of planning can secure peace of mind, reduce the risk of liability, and, most important, keep you and your employees safe.