Question: I’ve been a victim of a physical altercation with a co-worker. He “chest-bumped” me three times trying to provoke a fight. He outweighs me 100-150 pounds, took Karate, plays violent video games, and has a concealed gun permit. He has even bragged about having a gun in his car. I’m now fearful of my safety at work!

I’ve filed a complaint with the company. I’m in a hostile and unsafe work environment. I’ve informed the federal Occupational Safety and Health Administration (“OSHA”), and have filed a police report of the incident. I’m off work now due to the altercation.

What should I do next legally?

Bill
Eugene, Oregon

Answer: Dear Bill: Workplace violence is a very, very serious subject, and one that all employees and employers, and all others, really need to treat in a serious fashion. All too often threats turn into actual injury or death, and the “chest-bumping” and other characteristics of your victimizer as you describe them, sure seem to paint a vivid picture of real risk of future violence.

1. One immediate “legal” step you might consider is petitioning a local court for an “Order of Protection.” One “legal” step you have apparently not taken, but is available to you, is to request from a local Court an “Order of Protection.” This is a Court Order requiring your vicitimizer to refrain from a variety of things which might include (a) threatening you, (b) glaring at you, (c) even coming within 100 feet of you, under threat of immediate arrest if he violates it. Though most common in domestic disputes between husbands and wives, such Orders of Protection are available to anyone in your circumstances. Your local District Attorney should be able to assist you in this regard. If you wish, you may hire an attorney to assist you, as well.

2. Under U.S. federal workplace safety laws, employers are responsible for ensuring a safe working environment for their employees. The federal Occupational Safety and Health Act, which is administered by the OSHA agency, applies to virtually all employers. It requires employers to furnish employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. If an employer has reason to know of possible workplace violence (by means of threats, intimidation or stalking, as examples) but does not take appropriate steps to protect its employees, OSHA may impose civil fines and penalties ranging from $5,000 to $20,000 per violation, depending on the seriousness of the threat. Most states have laws similar workplace safety laws and agencies.

3. If you have been financially “injured” – due to medical expense, or lost income due to being out of work – you may be able to collect “Workers Compensation” benefits, provided you have filed a Workers Compensation claim. In the early twentieth century, as we evolved full-gear into an industrial society, many workers suffered injuries on the job due to industrial accidents. As a society, we decided it was best to create a way to take care of these workers and, at the same time, avoid an untold number of employee-vs.-employer lawsuits from clogging our courts. All states that I know of created a special kind of insurance fund for these claims and set up separate systems for filing such claims. All employers are legally required to contribute into these Workers Compensation funds, as a legal requirement of being an employer.

If you did suffer such costs, you do need to consider filing a Workers Compensation claim. You would ask your employer’s Human Resources department for the necessary information, and it would be best to locate and retain a specialized Workers Compensation attorney to assist you. (Incidentally, in all states I know of, legal expense is a covered expense; the injured worker does not have to pay any legal fees.) Bear in mind that a claim for Workers Compensation is not a claim or lawsuit against your employer, but instead merely a claim to an insurance fund set up for this very purpose.

One significant limitation on Workers Compensation is that the injury – here, the “altercation” would have to be “connected” to the job, that is, arise directly from it.

4. If, however, your injury did not arise “in connection” with your job, Workers Compensation may not be available to you. If an employee loses a hand due to a malfunctioning machine, it is clear that the injury arise “in connection” with the job. What if an employee is beaten up by a co-worker? As a general rule, Workers Compensation is available if the altercation arose in connection with the job, say, for example, if you were driving a forklift, drove over your co-worker’s toe, and he then slugged you. However, as a general rule, if you played poker on Saturday night with your co-worker, and he accused you of cheating, and a fight arose at the office, then that injury would not be one eligible for Workers Compensation coverage. If you are not eligible for Workers Compensation benefits, or believe you may not be, then you are free to consider both (a) threatening to sue your co-worker for (i) battery (which is generally defined as unlawful touching) or (ii) assault (which is generally defined as threatening a battery), or (b) threatening to sue your employer for negligence.

5. If your injury is not covered by Workers Compensation, then you might consider raising a legal claim (that is, a potential lawsuit) against your employer if you believe it has been negligent in (a) hiring, (b) failing to properly supervise, or (c) retaining, a person it has reason to know has been violent or threatening in the past. In your note to me, you did not note serious injury, and you did not say you were interested in leaving your employment. If either is the case, you could consider raising a legal claim against your employer if you feel it has been negligent in this matter in the ways I have noted above, and either hire an attorney to help evaluate any such claim before raising it with your employer.

If you think leaving your job might be the wisest course of action, and that you have a legal claim for employer negligence, then you might, too, consider asking for a reasonable severance package to assist you in leaving and finding a new job elsewhere.

We offer a Model Letter entitled “Proactive, Pre-Termination Request for a Severance Package” that might be of help to you in the event you choose this path. To obtain a copy, just [click here.]

6. Please bear in mind: the seriousness of some injuries – physical and emotional – may not arise for weeks, months or even years. As my friends and I age, we realize more and more how the “bumps, bruises and blemishes” of life may have unforeseen and later-arising consequences later in life. That is true, for example, for sports accidents, which may lead to later consequences that are far more serious than were originally thought. And, as are experienced by soldiers returning from combat zones, these are both emotional and physical. I ask you to bear this in mind in all of your decisions as to what steps may be prudent, especially legal ones. I say this because there is a deadline – called a “statute of limitations” – for the filing of every kind of claim you can now bring, and so your tardiness in filing a legal or Workers Compensation claim by one day past that deadline may make your claim totally unenforceable. Statutes of limitation are different for each legal claim, and vary a bit from state to state. In most states, the minimum statute of limitation for any claim is one year from the date of occurrence.

7. As both a legal step and a practical step, it’s important to continue to demand safety from your employer, and possibly, too, to demand certain cautionary preventive steps be taken. For your protection, to proactively prevent any possible harm to you, and to support any case you may take in the future, I strongly suggest continuing requests to your employer to protect you from such potential harm, and to include in such requests any ideas you may have for what may be helpful – and reassuring – to you.

Such steps and measures might include, among others: (a) asking other employees to closely observe your victimizer’s actions and statements for acts or words that might suggest anger, hostility or a likeliness to strike back; (b) physically searching your victimizer’s car, desk and locker each time he reports to work; (c) physically searching your victimizer’s clothing and backpack or briefcase when he arrives to work; (d) giving your victimizer absolute warning that he is being closely observed and will be arrested if he engages in threatening words or actions; (e) installing metal detectors that your victimizer must pass through to get into the workplace; (f) hiring armed guards to patrol your victimizer’s area of work; (g) requiring your victimizer to undergo a psychiatric evaluation to assess future potential risk; (h) transferring your victimizer’s worksite to a different location or different department; and (i) even demanding that your employer immediately fire your victimizer.

When “demanding” these and similar steps be taken by your employer, you must be respectful, and it’s a good idea to remind them of their legal obligations in this regard under the federal Occupational Safety and Health Act noted above.

8. Of course, the best way to communicate anything related to such claims, or related “legal steps,” is by email. Email is a wonderfully reliable and credible way to communicate anything that is important to you, and at the same time make a record of exactly what you expressed, to whom you expressed it, when you expressed it, and whether they received it or not. When emailing anything of this nature, it’s a good idea to “bcc” (that is, send a “blind copy”) to your home email address so that you have a copy of what you sent on your home computer.

9. Nothing is without risks of various kinds, including retaliation, but there is no greater risk than present risk to life and limb. I anticipate that you say to yourself, “But I might get my victimizer upset and angry if I take any of these steps.” I acknowledge the validity and reality of that fear, and the true possibility that it may be what takes place. That said, you could be harmed if you don’t take any steps above those you have already taken. Also, I am convinced that usually – though not always – victimizers are more likely to hurt others unless they are reminded that to do so might hurt themselves even more. There is always a risk that a victimizer might be enraged by what you may do, but there’s always a risk that the victimizer will not stop his or her victimizing unless you do what is necessary to stop them. Tough choice, no question, but one you must face at this time.

Bill, I hope this is some help to you. My prayers are with you. Good luck.

Best,
Al Sklover

P.S.: For those who have fear of workplace violence, we offer a Model Memo to Your Employer Insisting on Protection from Workplace Violence. It can help you get the protection you need. “What to Say and How to Say It.” To obtain a copy, just [click here.] Delivered by Email – Instantly! 

© 2012 Alan L. Sklover, All Rights Reserved.

Question: Left a job recently due to poor behavior of the company directors. They were sending to me our competitor’s confidential information that they surely had no right to have or use because they were trade secrets. 

How can I protect myself in case there is ever an investigation? I do not want to be blamed or included as a wrongdoer. Perhaps I am just paranoid?

Bob
Milwaukee, Wisconsin

Answer: Dear Bob: No, I do not think you are paranoid, and I do think you are fully justified in being concerned.      

1. Paranoid? What you describe is punishable in Wisconsin by imprisonment for up to 3 years and 6 months, plus a fine of $10,000. Paranoid? This is what Wisconsin State Laws Chapter 943.205 says:

“Whoever with intent to deprive or withhold from the owner thereof the control of a trade secret, or with intent to appropriate a trade secret to his or her own use or the use of another not the owner, and without authority of the owner . . . is guilty of a Class 1 Felony.” Wisconsin State Laws Chapter 939.50 provides that conviction of a Class 1 Felony may entail imprisonment of up to 3 years and 6 months plus a fine of up to $10,000.

Paranoid? Heck no. Or if you are, then I am, too.

2. Making matters even riskier, it is my experience that, if wrongdoing is discovered in the workplace, those who have left the company are often the ones who are scapegoated. “Something is wrong? Oh, it was the idea of the guy who left last month” is, unfortunately, a common response to the discovery of misconduct. And this is twice as common when the person who has left is not an “insider” in the company, but one who would not “go along” with questionable practices. I think it is wise to consider what you can do to prevent being blamed for something you didn’t do, or at least something that was not your idea.

3. First consideration: How might the company’s misconduct – if discovered – affect you? Bob, your first thoughts should be focused on how you might be affected if the company’s misconduct came to light. Did you use the trade secrets to your benefit? Do you have a license – such as a law license, a stockbroker’s license, an insurance agent’s license or other license – the rules and regulations of which might have required you to report this misconduct to the relevant licensing authorities? Have you already replaced your job, or are you still looking? Any chance you could be required to repay bonuses or commissions? The answers to these questions, and others like them, need to be factored into your decision about whether (1) you should do anything at all, (2) what you should do, (3) when you should do it, and (4) how you should do it.

While I feel strongly that wrongdoing should not be tolerated, I must be frank with you that I believe your obligations and commitments to your family and loved ones might be more important in determining what should be your best course of action. Obviously, I do not know you or your circumstances, so I cannot suggest which course of action is best. But I can tell you that you should stop and think, and perhaps even take counsel with people who know you, so that you do not act without sufficient forethought.

4. Bear in mind: there are risks in going forward, and there are risks in not going forward, too. Bob, something inside you prompted you to write to me. That “something” is probably a nagging concern that maybe a problem will arise, and if it does arise, it will be serious. Clearly there is mistrust there. In situations like these, there is surely a kind of “fork in the road” ahead of us, that is, a decision that needs to be made, one way or the other: stay quiet, or take a step forward to protect yourself. It is often a hard decision to make, and requires that you take into account many different considerations. No one can make that decision for you. Let me share with you what I often say to my own clients: “Give it time. The decision will come to you.” And, it almost always does.    

5. Regardless of your decision (or indecision), it is probably wise to assemble, or at least list, what (a) documents, (b) emails, (c) potential witnesses, and (d) circumstances, might be available to you to support your “defense” if accused. As the saying goes, “Hope for the best, but prepare for the worst.” Just as it is wise to buckle your seat belt before driving, it is always wise to assemble or at least list, what resources are available to you if you need them. Over time, you will probably forget the names, times and incidents that might exonerate you if you were accused of being involved in any wrongdoing. If you are at the least concerned, I would suggest you act now to preserve for the future your evidence of non-complicity. You might include a written statement of your own thoughts, which will fade over time. At a minimum, having these available to you should calm your fears.  

6. Your essential step – if you decide to take it – is to bring your concerns (and the evidence that supports your non-involvement) – to the company’s Board of Directors, in writing. My experience of over 30 years doing this kind of work on behalf of employees leads me to suggest to people in your circumstances that you address the situation before it “addresses you.” That is, get ahead of the issue before it comes to you. It is an active approach, and not a passive one. Of course, your letter or report to the Board Members should be in writing, and sent by email, so that there is a permanent and clear record of what you reported, when you did so, and the precise language of your report. (If you do decide to take this path, it might be a good idea to have a consultation with an experienced employment attorney before doing so.)

If you would like to obtain a list of five or more experienced employee-side employment attorneys in your city, just [click here.]

Bob, I hope this is helpful, and that whatever you should decide, you do it carefully, in good faith, and guided by the simple notion of “what is right.” 

My Very Best,
Al Sklover

Repairing the World –
One Empowered and Productive Employee at a Time ™   

© 2012 Alan L. Sklover, All Rights Reserved.

Question: Dear Mr. Sklover, I was terminated for saying “N—A please” to an African American co-worker of mine. I am Asian. During the investigation I notified my management that the phrase that I used is often used by 90% of my colleagues, some of whom are black, and others that are not. In the end, they decided that I posed too great a risk of liability to the company, and decided that the word I used was the same as the N-word ending in ER.

In the other girl’s statement she said that it was OK for other members of the team who were African American to use both the word ending in A and the one ending in ER, but that I could not say it.

Do I have grounds for claiming reverse discrimination against me?

P.K.
New York, New York

Answer: Dear P.K., Your question illustrates a sensitive issue but one that does need to be addressed to our best abilities:      

1. I don’t believe what happened to you was illegal “discrimination” because you were not (a) denied a job or job-related benefit by an employer (b) based on your own age, gender, race, or other protected category. The law says that illegal discrimination is a denial of the opportunities or benefits of employment on the basis of someone’s age, gender, race, or certain other protected categories. (a) You were terminated not because someone didn’t like your own age, gender, race or other “protected category.” (b) And you were not denied any “employment benefit or opportunity.” It just can’t be said that saying either of those two words is either an “employment opportunity” or a “benefit of employment.” So, what happened to you is not any kind of “discrimination,” whether direct or reverse.

2. Rather, I think you were terminated because of your conduct, and the likelihood you would repeat it in the future. I don’t think your use of those words was a kind of discrimination, but rather a kind of bad behavior, that is, saying things that many reasonable people find unreasonably offensive, not showing that you are sorry, and not assuring your employer that it will not happen again. To use your own words, your employer decided that you “posed too great a risk of liability,” because you might say that again. From the employer’s point of view, if they permitted you to stay on as an employee, and you continued to use those words, your employer was more than likely to be the subject of a lawsuit against it for permitting racist behavior and, in that way, not permitting African Americans the right to work in a non-racist environment.    

3. It’s just not a defense to say “But they do it, too.” If you are driving 85 miles an hour in a 55 mile per hour zone, it is not a defense to say, “Officer, I don’t deserve a ticket, because other drivers were going 85 miles per hour, too.” Whether your employer permits or does not permit African Americans or other people to say those words, your saying those words is hurtful to some, risky to your employer, and at a very minimum, distracting to everyone. You are responsible for your conduct, and no one else’s. While “unequal enforcement” of the rules could be a sign of racist policies, from the facts presented in your letter, no one complained about anyone else saying those words, so I don’t see – at least from what you’ve written – “unequal enforcement.”    

4. I don’t think anyone should be allowed to say racist words at work, but the truth is we permit some flexibility in enforcing every rule. As an employer, myself, I would not tolerate those words being said by any of my employees, no matter their race. It could hurt the feelings of so many people: people of a certain race, people who are married to people of a certain race, customers of a certain race, or anyone for that matter.

However, we all recognize that a degree of flexibility is given to some people some times that is not given equally to all. For example, Jewish people can sometimes make jokes about Jewish people and not seem offensive to other Jewish people, and the same goes for every religious, gender, racial, ethnic or other group. Likewise, if an airline pilot uses the word “bomb” when speaking with another airline pilot, chances are no one will arrest her. But if an airline passenger jokes about “bombs” during takeoff, there’s a better chance he or she will be arrested and taken off the plane. 100% fair? No. 100% human? Pretty much, yes.     

5. In matters of prejudice, no one is perfect, but we all have to be as careful, as sensitive, and as understanding as we can be. P.K., no one is pure in their heart and soul; we are all imperfect in so many ways. In as diverse a  society as we live in, we all need to try our best to be as respectful and understanding as we can, in order to get along as best we can. It sounds to me like your greatest “offense” was that you did not show remorse for your unintended offense, or were appreciative of the sensitivity we must all show each other, or an honest dedication to not offend anyone again in that way.

My own concern is that you will again probably lose a job on this basis unless you “get the right message,” which is to do all you can to not offend, and if you do make a mistake, to do all you can to make amends and assure you won’t do it again. My own hope is that this experience has given you that “message,” and that you’ll heed it in the future, to your benefit and the benefit of those around you.

P.K., thanks for writing in. If this has been helpful, I am glad, for these are sensitive issues, these are sensitive times, and the world needs people of good will and understanding more than ever.  

My Best to You,
Al Sklover

P.S: Our Model Letters help people stand up for themselves at work. For a friend facing Job Loss, Severance, Resignation, Bully Boss, Performance Improvement Plan, or other workplace problem, this is a nice “Helping Hand Gift for a Friend in Need.” Simply [click here] to view our list.

 Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

Question: I’m not allowed to apply for an open job in my company because my wife works for our company in the same building. It doesn’t make sense to me, because it is in a different shop, working for a different supervisor, and a different job function from hers. They call it a “conflict of interest.”

At the same time, HR has hired relatives with little or no qualifications, which I think is unethical and hypocritical.

We are union employees. Do I have any chance of legally fighting my not being allowed to apply for the open job or negotiate this with HR? Thanks in advance! 

         Johnnie 
         Pueblo, Colorado

Answer: Johnnie, before I give you  my view of whether you “have any chance” of being successful in applying for the open job, first I have to raise a few points:

1. In a union workplace, the union contract governs employees’ relations with the employer. It also sets the procedures for filing and moving forward with a grievance. That is the first place you need to look to determine your “chances” of being successful. While the contract is probably long, hard to read, and confusing, your union representative should be able to help you with it and its meaning.

2. You must understand that breaking the rules by others is not an excuse for your doing so. It is like telling a police officer, “Sure, I was driving my car 80 miles an hour, but others were speeding too. So you should not give me a ticket.” That just won’t work.

3. If you are aware of others breaking the rules – even if they work for HR – you can probably report them anonymously, or through an Ethics Hotline or company Ombudsman’s Office. What you say they are doing surely sounds like it is unethical, and hypocritical. That’s the “better” route to take. 

My own sense is that you will have little chance of success in applying for the job. The employer’s fears are that – somehow – someone will believe that either you acted a bit differently because your wife, or her coworkers, were involved in something, or that she acted differently because of your presence. Whether it’s true is not the point; if someone believes it is true, it is just as damaging to employee morale as if it is true. Prohibiting such circumstances from taking place is so very, very common. Very few employers make exceptions in this context. And if they did, surely almost everyone else would ask for the same exception.

At the same time, you might try, and even offer some ways of dealing with such “jealousies” from arising. I always love to see people achieve things that everyone else says are “Impossible.” 

I’ve written a helpful Newsletter entitled “Conflicts of Interest at Work – Here’s What You Need to Know.” I suggest you look it over; you can do so by simply [clicking here].

Sorry if it isn’t the answer you hoped for. But it is honestly how I see it.

  Best, Al Sklover   

©  2010 Alan L. Sklover, All Rights Reserved.