Employment Law Archives

Jim Shrimp | May 10, 2017

Compensatory Time Coming to a Private Employer Near You?

May 10, 2017

Last week the U.S. House of Representatives passed House Resolution 1180, entitled the Working Families Flexibility Act of 2017 (“WFFA”). Consideration of the WFFA is now onto the Senate. The WFFA will amend the Fair Labor Standards Act to permit an employer, at the employer’s option, to provide it’s employees with compensatory time in lieu of overtime. Should certain conditions apply, the employee will receive 1.5 hours of compensatory time for each hour of overtime worked.

Conditions

Under the WFFA, an employer may only provide compensatory time only if – (1) there is a written agreement wherein in the employee agrees to accept compensatory time in lieu of pay; (2) entered into voluntarily; and (3) the employee has worked with the employer for at least 1,000 hours during a 12-month period of continuous employment.

Hour Limit/Payout

Under the WFFA:

an employee may not accrue more than 160 hours of compensatory time (approximately 105 overtime hours)
there is no carry over to the next year, e., should an employee have unused compensatory time on December 31 of any given year, it must be paid out to the employee on or before January 31 of the next year.
if an employee has earned compensatory time in excess of 80 hours, the employer has the right to pay out any compensatory time hours exceeding 80 hours.
An employee may withdraw from the compensatory plan, or seek payment for all compensatory time with 30 days notice to the employer.

Use of Time

Under the WFFA the employee has a right to utilize his/her compensatory time within a reasonable time after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer.

Termination of Plan

Any employer that has instituted a compensatory time policy under the WFFA may terminate the plan on 30 days notice.

Compensatory time is at the employer’s option, but only with agreement of the employee. There is not much in the WFFA to object to – so keep your eye on it – the White House has advised that if the WFFA stays in its current form President Trump will sign it.

If you have any questions about employment law, please contact James B. Shrimp at 610-275-0700 or via email at jshrimp@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Jim Shrimp | April 5, 2017

Sexual Orientation Discrimination: The Legal Jumble

April 5, 2017

By James Shrimp

Imagine getting married, legally, on Saturday and then getting terminated by your employer on Monday because of who you married? For members of the LGBT community that is a possibility for which currently there is no, or very limited, legal recourse. But the tide may slowly be changing.

On July 28, 2016, the Seventh Circuit dismissed a sexual orientation claim, ruling that until Congress or the Supreme Court acts, Title VII does not protect against discrimination in the workplace based on sexual orientation. That decision is not remarkable, as all of the Circuit Courts, save the Ninth Circuit, currently share that view. What makes it remarkable is that the Seventh Circuit expressed significant frustration over the current state of the law, explaining why the current jurisprudence on sexual orientation discrimination is cumbersome and unworkable – but adding, that their hands were tied until Congress or the Supreme Court speaks on the issue.

Background

Important to a discussion on Title VII, sexual orientation discrimination, is the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins. In Price Waterhouse, the Supreme Court held that Title VII, as written, does prevent discrimination based on sex/gender stereotypes, but not sexual orientation. Thus, an employer is not permitted to discriminate against a male employee because he dresses to “feminine” or a female employee that is too “aggressive”, but the employer is permitted to discriminate against an employee because he married another man.

But that begs the question, is not discrimination against a male, because he has a relationship with another male, the violation of a stereotype? This is the seeming lack of logic within the current state of the law.

EEOC Decision in Baldwin

Last year, in a case involving a Federal employee, the EEOC ruled that Title VII prohibits discrimination based upon sexual orientation for a number of reasons, including that “sexual orientation discrimination … is based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms and appearances.” The EEOC than criticized Federal courts for trying to distinguish between sexual stereotype and sexual orientation discrimination. However, EEOC decisions do not have the force of law, but this EEOC decision has led to some Federal Courts taking another look at their own sexual orientation discrimination decisions.

The Current Analytical Quagmire

Currently, the Federal Courts recognize claims from LGBT employees who couch their Title VII claims as sexual stereotype claims, not sexual orientation claims. Thus, the law currently sanctions the absurd conclusion that “the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.” But, if the effeminate man is openly homosexual, the individual has no protection.

Since most instances sexual orientation discrimination have their genesis in the violation of a sexual stereotype the Courts have found the line between sexual orientation and sexual stereotype discrimination difficult to pinpoint and difficult to apply. This is evidenced by the fact that some Courts have disallowed most, if not all, sexual stereotype claims – throwing the baby out with the bathwater.

The Seventh Circuit in its decision concluded that “the distinction between sexual stereotype and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects LGBT individuals, but only to the extent that those individuals meet society’s stereotypical norms about how LGBT men or women look or act.” The Seventh Circuit mused that the current state of the law creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act … from an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it.”

With all of that said, however, the Seventh Circuit concluded that only when Congress or the Supreme Court acts, will sexual orientation discrimination be prevented by Title VII.

Takeaway

It is still Federal law in the vast majority of the United States that there is no protection for sexual orientation discrimination (although most major cities have adopted their own ordinances/statutes providing protection). However, the Seventh Circuit’s decision and analysis reflects a Federal Court system anxious for Congress and the Supreme Court to provide clarity on the bounds of Title VII with respect to sexual orientation. In the meantime, those who are discriminated against based on sexual orientation and the Courts hearing those cases, will continue to split the hairs, presuming any hairs exist in reality, between sexual stereotype and sexual orientation discrimination.

If you have any questions, please contact James Shrimp at 610-275-0700 or via email at jshrimp@highswartz.com.

High Swartz | February 14, 2017

Breaking Down “BYOD” Policies

February 14, 2017

The explosion of smartphones, tablets and technology generally, has inevitably resulted in employees performing work tasks on their personal devices. In the age of the ever present smartphone, and for many, the accompanying compulsion to stay constantly connected, employers and employees find themselves balancing the benefits and pitfalls of employees using their personal phones to conduct their employer’s business.

This has resulted in increased productivity and flexibility and oftentimes resulted in lowering a companies technology costs. With these benefits, however, come certain risks that a prudent employer should consider and provide for. The most popular means of addressing these issues is in the implementation of a Bring Your Own Device (“BYOD”) Policy.

While there are many concerns an employer must consider in crafting the most appropriate BYOD policy, some of the most common include: data security, employee privacy, theft or loss of device, non-exempt employee usage, and employer liability for employee misconduct.

Data Security

Data security is a huge concern for employers and as such this element is crucial to alleviate company concerns that an employee could potentially compromise company data through lax or nonexistent device security. Similarly, employers justifiably have concerns regarding employees connecting to unsecured Wi-FI hotspots or sharing their devices with other individuals leading to compromised data.

Accordingly, employers should consider requiring password protection, automatic locking after a certain period of inactivity, mandating regular backups, restricting access to especially sensitive company information or even using software to create a virtual partition in devices to keep personal data separate from work data.

Employee Privacy

A good BYOD policy will clearly set forth the employees expectation of privacy on their personal device that is being used for business purposes. It is important that after signing the agreement the employee understands what their rights are as to the device and information thereon.

Theft/Loss

Because phones are lost or stolen with unfortunate frequency, it is important that there be a policy in place that requires employees to immediately report a lost or stolen device. This section of the agreement may also contain a provision regarding the company’s decision to install software that would allow the company to remotely wipe the device in the event it is lost or stolen. Ultimately, all parties should be aware of what will happen to the device in the event it is lost or stolen.

Non-exempt employees

Because the Fair Labor Standards Act requires that non exempt employees be paid for all hours worked, a comprehensive BYOD policy will include a prohibition against off-the-clock email access/work by non exempt employees unless specifically authorized This ensures that all work performed on the company’s behalf is compensated.

Accordingly, deciding what classifications of employees will be able to use their personal devices for business is crucial. A company must proactively determine how it will handle such situations to avoid exposure under federal and state labor laws.

Employee misconduct

Finally, an employer wants to consider its potential liability if an employee uses his or her personal device to send harassing emails, even outside of work hours. Because the device is the employee’s personal property, employees may feel more comfortable engaging in inappropriate conduct than they would on company-owned property. This could potentially lead to an employee using social media, texting, or phone calls to defame, harass or otherwise inappropriately treat the company, co-workers, or other related parties. To address such concerns a policy should reaffirm that the company’s policies prohibiting such conduct apply with equal force to all devices covered under the BYOD policy.

There is no one size fits all BYOD policy. What a company needs by way of a BYOD policy will be controlled by the type of business, type of information contained on employee’s device and the availability of IT support to the employer. Additionally, due to the number of laws that intersect and impact BYOD policies, consulting an attorney to draft such a policy is crucial to the its success.

If you have any questions about BYOD policies, please contact us at 610-275-0700 or via email at main@highswartz.com.

Thomas Panzer | August 5, 2016

Independent Contractor Doctrine Affirmed

August 5, 2016

By: Thomas E. Panzer

The High Swartz workers’ compensation defense group recently earned a favorable ruling from the Pennsylvania Commonwealth Court. In the matter of, Edwards v Epicure Home Care, Inc. (Workers’ Compensation Appeal Board), 134 A3d 1156, Pa. Cmwlth Ct 2016, the Commonwealth Court affirmed our client’s use of independent contractors in the context of a workers’ compensation claim.

The Epicure Home Care case is important for any business utilizing independent contractors as part of its business model. Use of independent contractors has been under attack and presently is viewed with some suspicion in a number of venues. Epicure Home Care affirms the ongoing viability of the independent contractor doctrine. Continue reading "Independent Contractor Doctrine Affirmed"

Jim Shrimp | April 19, 2016

The NLRB Takes Aim at Employee Handbooks Affecting Employment Law

April 19, 2016

By: James B. Shrimp

The National Labor Relations Board (NLRB) and its field offices continue to seek to influence the non-unionized, private sector workplace. Last week, an administrative law judge in an NLRB proceeding involving Quicken Loans and affiliated companies, Fathead and One Reverse Mortgage, ruled that over 20 provisions of an employee handbook, known as the “Big Book,” violated the National Labor Relations Act. Specifically, the judge ruled that these Big Book provisions violated more than 15,000 employees’ rights to engage in concerted activity. Continue reading "The NLRB Takes Aim at Employee Handbooks Affecting Employment Law"

Thomas D. Rees | January 28, 2016

Just Hang Up! The Perils of Pocket Dialing and Accidental Calls.

January 28, 2016

By: Thomas D. Rees, Esq.

Dialing mistakes are no longer just material for late night comedy. Several recent employment cases show the consequences of “pocket dialing” on cell phones. The mistaken calls disclosed plans to fire executives, disrespect for management, conflicts of interest, and affairs with co-workers. The misdialing employees and supervisors emerged from the incidents with lost jobs and lost respect- and then lost lawsuits over use of information from the mistaken calls. Continue reading "Just Hang Up! The Perils of Pocket Dialing and Accidental Calls."

Jim Shrimp | December 18, 2015

Ban the Box: Hiring Just Got More Complicated in the City of Philadelphia

December 18, 2015

By: Jim B. Shrimp, Esq.

For decades, private employers have used a number of tools to analyze and evaluate candidates for positions, including requiring resumes, work and personal references and the completion of an application. Two tools that have also been used are credit checks and criminal background checks. I wrote an article back in September on the use of credit reports in hiring and the fact that Federal legislation has been introduced to significantly limit the use of credit checks. To date that legislation has not advanced toward becoming law. Continue reading "Ban the Box: Hiring Just Got More Complicated in the City of Philadelphia"

Jim Shrimp | November 16, 2015

Facebook and Employee Discipline: Employers “Dislike” the NLRB

November 16, 2015

By James B. Shrimp, Esq.

Can an employer get into trouble for firing an employee over something the employee wrote on Facebook? Apparently, yes.

The United States Second Circuit Court of Appeals recently agreed with the National Labor Relations Board (NLRB) that an employer violated the National Labor Relations Act “by taking certain actions against its employees, including discharge, for their Facebook activity.” The Second Circuit further found that the employer’s social media policy violated the Act.

Importantly, this decision applies to both union and non-union shops. In fact, over the last several years the NLRB has increasingly used its enforcement powers against non-union employers.

An Employee’s Protections Under the Act

The Act guarantees that “employees shall have the right to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of … mutual aid of protection…” The Act protects an employee’s rights by prohibiting an employer from interfering with, restraining, or coercing employees in the exercise of these rights.

An employee’s rights have to be balanced against an employer’s interest in preventing disparagement of its products or services and protecting the reputation of the business. Thus, an employee’s communications may lose protection if they are sufficiently disloyal or defamatory. Importantly, if an employee relays in good faith what he has been told by another employee, reasonably believing it to be true, the fact that the initial report was inaccurate does not eliminate the employee’s protection.

The Triple Play Sports Bar - Facts

The NLRB’s decision in a case at the Triple Play Sports Bar serves as a cautionary tale for employers. Here are the details of the case, which can be ound at 361 NLRB 31 (August 22, 2014). I have cleaned up the language a bit for family consumption, just in case you want to read this to your kids at bedtime.

“The employer employed Jillian Sanzone as a waitress and bartender, and Vincent Spinella as a cook. In approximately January 2011, Sanzone and at least one other employee discovered that they owed more in State income taxes than they had expected. Sanzone discussed this at work with other employees, and some employees complained to the employer. In response to the complaints, the employer planned a staff meeting for February with its payroll provider to discuss the employees’ concerns.

Sanzone, Spinella, and former employee Jamie LaFrance, who left the employer’s employ in November 2010, have Facebook accounts. On January 31, LaFrance posted the following “status update” to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!

The following pertinent comments were posted to LaFrance’s page in response:

DESANTIS (a Facebook “friend” of LaFrance’s and a customer): “You owe them money...that’s f*%&ed up.”

* * *

LAFRANCE: “The state. Not Triple Play. I would never give that place a penny of my money.

Ralph [DelBuono] f*%&ed up the paperwork…as per usual.”

DESANTIS: “yeah I really dont go to that place anymore.”

LAFRANCE: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

(At this juncture, employee Spinella selected the “Like” option under LaFrance’s initial status update. The discussion continued as follows.)

* * *

SANZONE: “I owe too. Such an a**hole.”

Sanzone added her comment from her cell phone on February 1. On February 2, when Sanzone reported to work, the employer told her she was being discharged. When Sanzone asked why, the employer, having learned of the Facebook post, responded that she was not loyal enough to be working for the employer because of her Facebook comment.

When Spinella reported for work on February 3, he was summoned to a meeting. The Facebook comments from LaFrance’s account were displayed on a computer screen in the office. After asking Spinella if he “had a problem with them, or the company,” he was interrogated about the Facebook discussion, the meaning of his “Like” selection, the identity of the other people who had participated in the conversation, and whether Spinella had written anything negative to say about the employer. Spinella was told that because he “liked the disparaging and defamatory comments,” it was “apparent” that Spinella wanted to work somewhere else. Spinella was then discharged.”

In the case there were two instances of employee conduct at issue.

Spinella, “Lik[ing]” the post of Ms. LaFrance, which stated “maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!”
Sanzone, commenting on the LaFrance post stating “I owe too. Such an a**hole.”

The Triple Play Sports Bar – Legal Decision

The Court and the NLRB both determined that Mr. Spinella and Ms. Sanzone’s conduct on Facebook was concerted activity under Section 7 of the Act, because it involved an “ongoing sequence of discussions that began in the workplace about [the] calculation of employees’ tax withholding.” The Court and the NLRB further determined that the statements were not defamatory, even though profanity was used, because the conversation wasn’t directed at customers and did not relate to the employer’s brand. The Court also determined that the employer violated the Act by (1) threatening employees with discharge for Facebook activity; (2) interrogating employees about their Facebook activity; and (3) informing employees that they were being discharged for their Facebook activity.

In addition, the Court determined that the employer social media policy violated the Act. The employer maintained the following work rule as part of its Internet/Blogging policy in its employee handbook:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The Court determined that “employees would reasonably interpret [this] rule as proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’ by the employer.”

Takeaways for Employers

“Concerted activity” is being interpreted very broadly by the NLRB. Any statements, expressions or shows of support by employees about terms and conditions of employment and/or support for union activities, even if the employer is non-union, should be deemed concerted activity by the employer.
Employers must view any social media, including Facebook, as an extension of the workplace. If something is said by an employee on social media that would be protected if it were said in the workplace, it is likely protected on social media.
Employers must review and reevaluate their social media policies. Many of these policies were drafted near the beginning of the social media explosion and did not contemplate the assertion of NLRB authority in the social media space.
In reviewing social media policies focus on the protection of the employer’s product and/or brand. Statements by employees disparaging or defaming an employer’s product or brand can still lead to the lawful termination of an employee.
Realize that many employees under 35 (Gen Xers) complain about everything on social media – work, food, people, TV shows, etc… Whereas an employee currently in their 50s used to complain about their boss or working conditions to others around the water cooler, younger employees do so on social media – social media is their water cooler. Unfortunately, social media provides more publicity to discussions about issues at work, but the NLRB deems social media to be the equivalent of the water cooler. With that said, the torts of defamation, tortious interference, and invasion of privacy still provide some protection to the employer.

For more information about employment law, feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com.

Visit the firm’s Employment Law page.

Jim Shrimp | October 9, 2015

Association Discrimination: Another Consideration When You Cut One (an employee that is)

October 9, 2015

By James B. Shrimp, Esq.

This past weekend, I was thinking about blogging, while standing in my kitchen cutting the cheese (I was cutting the cheese for a party I was having). I concluded that there are some blogs that you need to hold in because you aren’t quite sure the audience can handle it. Then, there are other blogs that you have to let loose, because if you hold it in your stomach just won’t feel right. Well, this is one of those blogs that I had to let rip, because staying silent on this issue could be deadly for employers (well, not really deadly).

Last month, a Trenton, New Jersey business was sued for violations of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”). The Plaintiff in the lawsuit was a part-time employee of the business, who assisted and was the wife of the business’ comptroller.

According to the Complaint, Plaintiff’s husband was obese, weighing 420 pounds and in October of 2010, Plaintiff’s husband underwent gastric bypass surgery. Also, according to the Complaint after the surgery, Plaintiff’s husband suffered the side effects of extreme flatulence and uncontrollable diarrhea. These symptoms allegedly worsened over time and caused the Plaintiff significant disruption in the workplace.

Plaintiff’s employer aired its concerns about the side effects and asked that Plaintiff’s husband work from home. Plaintiff’s employer also allegedly made statements to Plaintiff about her husband’s side effects and whether there was anything that could be done to alleviate the issue.

About three and a half years after the surgery, Plaintiff’s husband was terminated. Instead of just letting one go, the business also terminated Plaintiff. Plaintiff brought the lawsuit alleging that she was terminated for associating with her husband, who allegedly has a disability.

In reading this, many employers might think it stinks, thinking how can an employee bring a claim under the Americans with Disabilities Act when they don’t have a disability. Well, the fact is that in some instances an employee without a disability can bring a claim under the ADA, as the Plaintiff has done, for association discrimination.

The ADA’s anti-discrimination by association provision prohibits:

excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.

In order to establish a case of association discrimination in the case of a termination, a plaintiff must prove that:

she was qualified for her job at the time of the termination;
she was terminated;
at the time of the termination, plaintiff was known by her employer to have a relative or an associate with a disability; and
the termination occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the termination decision.

Notably, the ADA refers to terminations (or other adverse actions) motivated by ‘the known disability of an individual’ with whom an employee associates, as opposed to actions occasioned by the association. For instance, being terminated for missing work related to someone else’s disability is not actionable under the ADA (although it may be under the Family and Medical Leave Act). The termination must be because of the relationship or association itself.

In passing, just because an employee is not disabled, does not mean that the ADA might not provide protection for an employee, should that employee have associated with a disabled individual. Employers, be alert, because the last thing you want is to get a whiff of an association claim after its already been let loose.

For more information about employment law, feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

Jim Shrimp | October 2, 2015

Workplace Conflict: Management Lessons from Jonathan Papelbon

By James B. Shrimp, Esq.

This past weekend Jonathan Papelbon, the talented and unpredictable closer for the Washington Nationals, had a heated discussion with MVP-candidate Bryce Harper about Harper’s failure to run hard after hitting a fly ball. The heated discussion quickly turned physical, when Papelbon grabbed Harper around the neck and pushed him up against the dugout wall. Papelbon and Harper were then separated by their teammates. In response, the Nationals have suspended Papelbon for four games.

As a life-long Phillies fan, I take some degree of warped pleasure in seeing how Papelbon, a Phillie until two months ago, has apparently unsettled the Nationals. The Nationals were one game ahead of the Mets at the time of the trade and are now nine games behind the Mets and have been eliminated from playoff contention. My twisted interest aside, this incident does raise the issue of how an employer should deal with conflict and fights at work. Importantly, this is conflict that does not rise to the level of unlawful discrimination or harassment.

No workplace is utopian. We are all human, so if you employ more than just yourself, the ingredients are present for conflict, and if allowed to simmer, fights. The conflicts can range from high-school style “clique” drama, to manufactured power-play disputes, to professional disputes. Many of these conflicts cannot be avoided, but what an employer can do is address and manage the conflict so it does not disrupt workplace harmony, or simmer into a physical altercation, both of which are bad for the employees involved, bad for morale and could lead to potential legal liability.

Although inevitable, there are some things employers can do to manage workplace conflict.

Accept Conflict and Manage It

As stated above, conflict happens in the workplace, whether it be conflict derived from “drama” or whether it is serious decision-based conflict. In either case, the employer cannot take the position that conflict “cannot happen in my workplace.” The employer must not dismiss out-of-hand the position of one employee over another. Listening, not just hearing, is key to managing conflict. Moreover, the employee and employer must understand that the goal is not circling around the campfire signing kumbaya. One does not have to like who you work with, but you have to function in the workplace in a respectful manner. The key for the employer is to manage the conflict so the parties can move forward in a respectful manner.

Look for Personality Conflicts

Oil and water. It happens. Sometimes you have two good employees who work hard and there is something that just does not work between them. It could be present from the first interaction, or it could develop later. If those individuals with the conflict cannot recognize and accept those conflicts between them, which would allow them to move forward in a respectful manner, the management of the conflict may well include the separation of the two individuals. Personality conflicts, as opposed to “workplace drama” or professional conflict, can quickly and seriously infect the morale of a workplace.

Open Door Policy/Communication

Your employee handbook should contain, and management should make clear, that an open door policy exists, and that employees should feel comfortable raising and discussing the conflict in hopes of resolving the matter.

Don’t Be Afraid to Discipline or Terminate

If the conflict is continuous, or if the conflict extends beyond verbal disagreement, the employer must not be hesitant to take disciplinary action, including termination if the circumstances require it.

Most employers have, and I would recommend, a zero tolerance policy with respect to physical fighting, or threats of bodily harm. For instance, if an employee punches or threatens physical harm with an instrument (e.g., knife, gun, etc…) the employer should contact the police and the employee should be terminated.

If the employer fails to take disciplinary action regarding an employee with a propensity for intense conflict and violence, the employer may be liable for negligent supervision and other torts. In short, in the real world of everyday employment, Papelbon would have been terminated, not just suspended for four games.

For more information about employment law, feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.