Generally speaking, human resources professionals and business
executives have become quite adept at dealing with employee claims
for illegal harassment. For example, just about any HR manager can
provide a definition of a "hostile work environment."
Likewise, HR managers are keenly aware of what to do when handling
workplace romantic relationships or inappropriate conduct that have
the potential to generate a lawsuit.
But can HR managers provide a legal definition for the term
"assault?" This has become an important new concept for
managers to learn in supervising employees and ensuring that the
workplace is not a breeding ground for litigation. HR managers are
accustomed to investigating employee complaints with an eye towards
the common federal claims upon which they have been trained, but
they are now going to have to pay attention to emerging state-law
claims, as well.
How Assault And Battery Is
Different
Civil claims for assault and battery have existed for decades, but
in recent years, lawyers representing employees have started to
make use of these claims with increasing frequency. Here's
why:
Civil assault is typically defined as an instance when a person
demonstrates the intent to hurt another and the victim believes
that they will be hurt. There is no requirement of actual contact
or physical injury, which is why the legal definition of assault is
so different than the common English meaning. The legal standard is
relatively low and contains a subjective element, i.e. that victims
believe that they are in danger of immediate harm. Thus, an assault
claim can be hard for an employer to disprove. Likewise, a battery
is typically defined as a physical touching without consent. Again,
the standard here is often fairly low.
Assault-and-battery claims regularly come down to contested
factual questions, usually between the recollection of the victim
and the alleged wrongdoer as to the nature and specifics of the
incident in question. It can be hard to get summary judgment in
these "he said, she said" situations.
In contrast, federal discrimination and harassment claims involve
either adverse employment actions for which the employer is in
possession of the relevant information regarding the rationale for
the action or a hostile work environment, which is a high burden
for an employee to meet.
Assault-and-battery claims are based on state law, which means
that an employee can usually avoid having the case heard in federal
court. This is significant because state judges are often less
likely to grant summary judgment and are more prone to take a
hands-off approach to discovery.
Most states do not have a broad body of reported case law
regarding assault-and-battery claims, especially in the employment
context. This stands in contrast to federal law on discrimination
and harassment claims, which is extensive and generally useful for
an employer seeking summary judgment on claims brought by a former
employee.
In short, assault-and-battery claims are harder for an employer to
litigate in a clean, quick fashion. They are more fact-intensive,
there is less law upon which an employer can rely, and they are
typically litigated in forums that are more favorable for
employees. That means that the settlement value of an
assault-and-battery claim is often higher than that of a
discrimination or harassment claim based on the same facts.
So what should a prudent supervisor or human resources manager do
to best protect a company against an assault-and-battery claim?
Here are a few basic steps:
Be aware that these claims are real
The first step in guarding against a threat is to know that it
exists. It's important for managers to be aware of the
applicable definition of assault and battery in their jurisdiction.
Although the definitions are generally similar, there are important
variations from state to state.
1. Listen for the key terms
One of the basic skills for being a good HR manager is being an
adept listener. Dealing with potential assault-and-battery claims
is no different. With discrimination and harassment claims, the
focus is on whether the employee is being treated differently on
the basis of a protected characteristic, so the words to listen for
all relate to fairness and equal treatment.
But with assault, the focus is on whether the employee was in
apprehension of an injury and with battery, the focus is on actual
physical contact. The key words to listen for relate to fear and
then to any sort of touching. The treatment of other employees is
critical in a discrimination or harassment case, but not as much
with assault and battery.
2. Ask the right questions
In a harassment or discrimination claim, HR managers know to ask
questions about how the supervisor or coworker treats other
employees, and how that conduct affected the complaining
employee's ability to do the job. Critical questions in the
assault-and-battery context, include "did he actually make
contact with you?" "do you have any injuries?"
"do you need to speak with a physician or a mental health
professional?" "did you feel like you were about to be
physically harmed?" and "what made you feel like you were
in danger of an injury?"
3. Document the results of the
investigation
This is good advice for any investigation, but it is especially
important in the assault-and-battery context because employees
rarely know that assault and battery can be civil claims against
their employer. A prudent HR manager should try to avoid a
situation in which an employee has a general sense of being
disrespected and then over the course of an interview with a
lawyer, is directed into describing the incident as one of assault
and battery.
Getting an employee to document a grievance in the immediate
aftermath of an incident can be very useful in combating the
coached descriptions that can come out once an employee has been
prepared for a deposition in a civil suit.
4. Emphasize the importance of avoiding fear and physical
contact in the workplace
Again, this is good advice in general, but the specter of an
assault-and-battery claim can be useful ammunition in dealing with
employees (and especially managers) who come too close to the line
for acceptable conduct.
For instance, a supervisor who is sometimes loud and aggressive
with subordinates might defend that style of managing as being
necessary in the particular work environment. It's one thing to
defend that manner of management as being a personal style;
it's another thing to have to defend that style after being
told that placing employees in a state of fear of injury can expose
the company to the possibility of defending a messy lawsuit.
Asking that supervisor "do you really want to have to explain
in a deposition that you did not intend to hurt that employee in a
situation where the employee says that they were in fear of
immediate injury?" can get the point across quite
effectively.
5. Use arbitration agreements
Arbitration provisions are not perfect for every employer-employee
relationship, but the assault-and-battery context is one in which
they can be useful. Defending against assault claims can be
challenging, as you need to convince the fact finder that the
conduct of the accused might have been insensitive or even rude,
but it did not meet the legal definition of assault.
That argument will be far more effective when the fact-finder has
a legal background, as is the case in arbitration and is not the
case in a jury trial. Arbitration provisions are not a panacea, but
when weighing whether or not to use them, the prospect of an
assault-and-battery claim is increasingly as one factor to
consider.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.