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Risk Focus: Professional Liability
Incivility’s Growing Risk
Workplace incivility is on the rise.
Workplace violence — a frequent outcome of incivility — is reported to cost $4.2 billion dollars a year and claims 1,000 lives annually. The Journal of Nursing Administration reports incivility is often responsible for lost productivity, high turnover, low morale, reputational damage, workers’ compensation claims and lawsuits.
Toronto-based Bar-David Consulting, which helps firms create civil work environments, finds a direct connection from incivility to harassment and bullying and finally physical violence. That link constitutes “a big risk management worry,” said Lori Severson, health care loss control consultant, Lockton Companies.
In 1998, 49 percent of workers reported rude treatment at least once a month. In 2016, 62 percent said the same, according to research conducted by Christine Porath, associate professor, McDonough School of Business, Georgetown University, and Christine Pearson in the Harvard Business Review.
Michigan State University research found incivility is spreading, racking up an average annual impact of $14,000 per employee in lost production and work time.
Increasingly, Severson said, organizations are adopting strategies from the health care industry, generally considered the “gold standard of workplace safety.”
Some insurance products are adapting to a broader spectrum of risks. For example, some employment practice liability coverage will respond to bullying allegations, said Paul Marshall, managing director, McGowan Program Administrators. And some workplace violence policies added threat protections. “Now it will respond to just a threat,” he said.
Daniel Gugala, executive vice president and general counsel, Crisis Prevention Institute
All organizational change, including zero tolerance for uncivil behavior that can escalate into violence and lawsuits, begins at the top, wrote Valerie Keels, head of DC office services, Gavi, and member of the Society for Human Resources Management’s HR Disciplines Expertise Panel, in an e-mail interview.
“The CEO, president or other high-level authority figure in the organization must not only practice this behavior but also advocate for it publicly and often,” then follow up with organizational policies and procedures.
“Then the line managers and employees must be educated and trained about what civil behavior does and does not look like,” Keels wrote.
Uncivil behavior can often be subtle and unconscious. “Think of the manager who sends emails during a presentation … or the team leader who takes credit for good news but points a finger at team members when something goes wrong,” wrote Porath.
A Not-So-Hidden Liability Risk
Workers get on each other’s nerves, bringing personal habits into the workplace. They decorate their workspaces with photos of wives in bikinis, religious articles and political paraphernalia.
Most companies already have anti-harassment policies in place that define which personal items employees can and can’t have in the workplace, said Allison West, Esq., principal, Employment Practices Specialists, LLC, which might cover the issues of swimsuit photos and religious articles.
“You can reduce the risk with training, but you’ll never eradicate it. You can’t force people to be civil.” —Daniel Gugala, executive vice president and general counsel, Crisis Prevention Institute
A complete ban on personal items would be overkill, said West. But private employers have legal grounds to take that draconian step, since first amendment rights do not apply in the private workplace except for collective actions under labor laws, according to Katherine Stone, distinguished professor of law, UCLA School of Law.
Then there are snubs, unreturned emails and unacknowledged efforts.
If incivilities relate to gender, religion, race or any constitutionally protected groups, “that raises serious HR concerns and some liability exposure for the company,” said Stone.
Cases that “go beyond rolled eyes into marginalizing or excluding a co-worker because of race or gender can be a liability if the behavior is interfering with the person’s ability to do the job and succeed in the workplace.”
In those cases, she said, “there can be liability if the company knows about it and does nothing to stop it.”
The Equal Employment Opportunity Commission Task Force on the Study of Harassment in the Workplace recommends civility training and bystander intervention training as part of a holistic harassment prevention program.
Most large employers understand the importance of safety, said Sam Estreicher, professor of law, New York University School of Law and director of its Center for Labor and Employment.
Sam Estreicher, director, Center for Labor and Employment, New York University School of Law
“An organization that’s willing to commit resources to how people communicate — both how they deliver and receive messages — may keep in check those who don’t have the propensity to follow the right path,” said Daniel Gugala, executive vice president and general counsel, Crisis Prevention Institute, an international training organization specializing in the safe management of disruptive and assaultive behavior.
“You can reduce the risk with training,” he said, “but you’ll never eradicate it. You can’t force people to be civil.”
You’re Fired
Employers have a legal obligation to run a safe workplace. Social media lifted the veil of privacy from off-duty behaviors, and sometimes those behaviors result in termination.
For example, at least four white nationalists who demonstrated in Charlottesville, Va., lost their jobs after being identified through Twitter.
This poses the question: Are legal but unsavory activities with a controversial group outside the office grounds for dismissal?
For public sector employees, no, said Stone, because of first amendment protections. However, employment in the private sector is “at will,” giving employees fewer protections.
The law varies by jurisdiction, but in general, private employers do not monitor employees’ behavior outside the workplace, said Estreicher. “Policing behavior outside the workplace is generally counterproductive.” Overzealous employers, he said, “will be clobbered in litigation.”
Again, there are exceptions, Estreicher said, especially where employers perceive potential harm to their brand. Say an employee identified as attending a white supremacy rally is a supervisor, not “just a guy on the line,” the employer should bring him in for a talk. “You say, ‘You’re acting as my agent and you’re putting my company in a bad light.’ That would be consistent with a reasonable civility policy,” said Estreicher.
Civility, Stone said, “is in the eyes of the beholder” and some types of employee activities that might appear uncivil can trigger the protection of labor laws.
“The law allows employees to criticize their employer about working conditions, sometimes loudly and profanely. Some might consider those protests to be uncivil, disruptive or inappropriate.”
To merit legal protections, those kinds of behaviors would rise above “one disgruntled person griping, but trying to get colleagues to join the conduct as a protest,” Stone said. &
