Category Archives: Code of Conduct

Employer May Be Held Liable For Employing Murderer!

Contributed by Noah A. Frank, July 27, 2017

Claims of negligent hiring, training, and retention is alive and well. Employers must be prepared to investigate, and fully remediate supervisors’ misconduct.

code of conduct

Recently, the Seventh Circuit Court of Appeals (Illinois, Wisconsin, Indiana) held that an employer may be liable for intentional acts committed by supervisory employees against other employees outside of work if the employer has been negligent. The tragic case, Anicich v. Home Depot USA, Inc., 852 F. 3d 643 (7th Cir. 2017), arose from the death and rape of a pregnant employee at the hands of her supervisor.

Background

Home Depot and its garden centers subcontractors (together, the “Employer”) jointly employed Brian Cooper as a regional manager. The victim’s estate alleged the employer knew Cooper had a history of sexually harassing, verbally abusing, and physically intimidating female subordinates, which included making crude and lewd comments, yelling and swearing at them, rubbing against them, controlling their conduct by pressuring them into spending time with him alone, and even throwing things.

The supervisor’s mistreatment of one subordinate, Alisha Bromfield, began in 2006 when she started working for the employer seasonally as a teenager. Cooper fixated his attention on her, calling her his “girlfriend” at work and repeating the above misconduct with her. Senior management, aware of Bromfield’s repeated complaints, failed to take reasonable steps to protect Bromfield, ensure that Cooper completed mandated anger management training or remove his supervisory duties. This ended in tragedy.

In 2012, when Bromfield was 7 months pregnant, Cooper threatened her. Using his supervisory authority, he demanded that she attend an out-of-town wedding with him, telling her he would fire her or reduce her hours if she refused. Bromfield acquiesced, but denied Cooper’s recurring demand to “be in a relationship.” After the wedding, Cooper murdered Bromfield, and then raped her corpse.

The Court held that employers have a duty to act reasonably in hiring, supervising, and retaining their employees, and that this was part of a broader trend toward recognizing employer liability for supervisors’ intentional torts committed outside the scope of employment – even where the harm caused was wholly disproportionate to more predictable harms (e.g., murder/rape versus continued sexual harassment, emotional/mental trauma). Because Cooper was alleged to have abused the employer’s grant of supervisory authority over Bromfield, the employer could be vicariously liable for Cooper’s torts committed against Bromfield.

Employers’ Duty in Light of the Seventh Circuit Court Ruling

Anicich is instructive. Employers that fail to act to stop an employee’s abuse of supervisory authority could be held liable for even the most extreme and gruesome intentional tortious and criminal conduct.

As such, employers must protect their businesses, including the following minimum steps:

  • Understand the risks associated with subcontracting and joint employer relationships, including supervision and control;
  • Implement and train employees on anti-discrimination, harassment, and sexual harassment policies, including a published complaint/reporting procedure, and prohibiting retaliation;
  • Take seriously and investigate all reports and complaints – no matter how minor, and even for repeat complainants;
  • Remediate any issues – including stripping supervisory authority, mandating training, and transferring/terminating employees;
  • Prohibit and protect those involved from, retaliation;
  • Respect and comply with collective bargaining rights – and get the union’s buy-in when necessary; and
  • Seek the advice of and guidance from experienced employment counsel when issues arise to ensure legal compliance and implementation of best practices to mitigate exposure.

Alcohol Use – Can you regulate and/or discipline an employee for using alcohol outside of work?

Contributed by Mike Wong

Can I regulate and/or discipline an employee for using alcohol outside of work?

While you might think the answer is pretty straightforward – it is NOT.  Attorneys often respond by saying, “it depends.”

If an employee’s use of alcohol (or any other legal product) outside of work is negatively impacting their performance or resulting in them coming to work impaired, then you can issue discipline in line with your policies and procedures for that conduct.

What if it is not impacting their performance and they are not coming to work drunk?

Again the answer is the dreaded – “it depends.” In part, the reason for this is that different states have different laws. For example, in Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin employers are prohibited from discriminating against or treating employees different because of their use of legal products. In California, Colorado, New York, and North Dakota employers cannot treat employees differently based on their decision to engage in legal activities.

What if you are not in one of those states?

code of conductIt again depends on the circumstances and what actions the employer is trying to take. In an Informal Discussion Letter from August 28, 2014, the EEOC addressed whether an employer can require employees who are alcoholics, or are perceived to be alcoholics, to permanently abstain from drinking alcohol on or off the job as a condition of continued employment. The EEOC advised that requiring these employees to permanently abstain from drinking would likely violate the American with Disabilities Act (ADA) and constitute discrimination based on alcoholism, which is a recognized disability.

Employers may have a legitimate business interest in ensuring that employees are not impaired during work; however, they generally do not have a legitimate business interest in regulating an employee’s conduct outside of work. When dealing with alcohol and alcoholism there are a few things that employers should remember:

  1. Employers can prohibit employees from using, being impaired by or possessing alcohol in the workplace – i.e. have a drug and alcohol free workplace policy.
  2. Alcoholism is a protected disability under the ADA
  3. The ADA specifically allows employers to hold alcoholics to the same performance and conduct standards as other employees.
  4. Employers can discipline/terminate employees for performance or conduct, in the same manner as other employees, even if the employee claims the performance or conduct was due to alcoholism.
  5. Last Chance Agreements can be used to require an employee to get substance abuse treatment, avoid further workplace problems, be tested for alcohol and not violate the company drug and alcohol policy. However, it should steer clear of any prohibition on alcohol use outside of work.