Regardless of the Workplace, California Employers Must Tackle a Hostile Work Environment

Recent allegations of bullying in the locker room of the Miami Dolphins football team has received tremendous media attention.  From a legal perspective, the type of work athletes perform and the locker room culture do not necessarily matter as much as the actions (or inactions) of team management when analyzing possible liability a team may have in this type of situation.  If the Dolphins were in Los Angeles rather than Miami and the identical situation occurred, the team would be at risk of defending itself from a hostile work environment claim.

 

California Law Requires Employers to Provide a Workplace Free of Violence and Threats.

California law requires employers to ensure a safe work environment.  This includes taking adequate measures to ensure employees health and safety including a workplace free from credible threats of violence.[i]

Examples of workplace violence include: verbal harassment; threats of harm against a co-worker or his/her family, friends, or property; or the suggestion or intimidation that violence is appropriate.[ii]  Employers must maintain a written action plan for threats of violence and to take action when a threat is made.[iii]

Football is an inherently violent game but that does not alleviate the Dolphins from possible liability under California law.  The playing rules of football govern the on field conduct of voluntary participants in games.  However, once the playing rules no longer govern the actions of players and coaches, a football team is like any other business and labor laws may apply.  The possible liability in these situations is viewed in the totality of the circumstances – meaning the entire history of the parties and workplace will be reviewed.

The Actions of Dolphin Coaches and Management Would Place the Team at Risk of Legal Liability Under California Law.

News reports state the Dolphins coaching staff was aware player Richie Incognito had a prior history of assault[iv]; Incognito was threatening Dolphins player Jonathan Martin[v]; and coaches instructed Incognito to “toughen up” Martin.[vi]

In California, a claim for a hostile workplace requires a company have knowledge of threats.  Here, the Dolphins do not dispute the team’s knowledge of the tenuous relationship between Incognito and Martin.

The Dolphins failed to take the necessary action to stop Incognito’s threats.  Incognito was eventually suspended by the Dolphins, but this only after they had been aware of the threats for some time and five days after Martin left the team to seek psychiatric care.[vii]

California Businesses Can Learn How to Protect Themselves From The Failures of the Dolphins.

California businesses have several takeaways from this situation which can help them avoid expensive hostile work environment and related claims:

1.         Implement reporting programs for workplace threats.

This allows management a tool to discover workplace problems and avoid costly turnover.

 2.        Investigate all claims from employees.

Companies can take care of issues before an employee decides a lawsuit is the only remedy.  Each alleged threat should be thoroughly investigated and all parties should be interviewed to get the best overall picture of what happened.

3.          Document all claims and investigations conducted.

Completing standard investigation forms during each investigation helps businesses track complaints and helps management understand the workplace culture.  These reports also hold great evidentiary value if a claim is made against your company.

 4.          Hold regular training sessions regarding company policies and procedures.

Policies and procedures are only as good as the understanding your employees have of them.  Regularly hold training sessions to review company policies and procedures and answer questions employees may have.

5.           If an employee has made threats of violence, take corrective action.

Any employee found to have made a credible threat should receive corrective action.  The action does not need to be termination, but the corrective action should show the seriousness your company takes workplace safety and eliminating workplace threats.

6.           Make sure your management team has a pulse on your workforce.

Management with an understanding of the workplace culture generally has fewer workplace issues than those who chose to distance themselves from their labor force.  Management should understand the personalities, employee performance, and response protocols for employment issues.

The best defense to a situation like this is to take care of it before it occurs.  For questions about setting up your business properly to shield itself from as much liability as possible, please contact attorney Brandon Leopoldus to set up a consultation.

 


[i] Cal. Labor Code § 6401; Cal. Labor Code § 6400; Cal. Code of Civil Procedure § 527.8; Franklin v. Monadnock Company et al., 59 Cal.Rptr.3d 692 (2007), 151 Cal.App.4th 252;   (The Workplace Violence Prevention Guidelines and Model Program For State of California Administrative Units, Nov. 19, 2001 (the “Guide”) defines an “Act of Violence” as “the attempt (coupled with the ability), or actual use of force of violence with the intent to threaten, harass, intimidate, commit a violent injury, or damage/destroy property (at p.6).  The Guide defines a “threat” as: a statement (verbal, written or physical) which is intended to intimidate by expressing the intent to either harass, hurt, take the life of another person, or damage/destroy property.  This includes threats made in jest but which others could perceive as serious.

[ii] Id at p. 7

[iii] Cal. Labor Code § 6401.7

[iv] In 2012 Incognito faced a molestation accusation stemming from a team golf tournament.  While this incident did not include Martin, this was the first instance (known at this time) the team failed to take action against Incognito for inappropriate conduct during team activities.  Incognito investigated for molestation, ESPN.com news services, November 8, 2013; available at: http://espn.go.com/nfl/story/_/id/9944012/police-report-filed-richie-incognito-alleged-molestation-2012-no-charges.

[v] Just prior to Martin leaving the team on his own, his agent was told by Dolphins General Manager Jeff Ireland, in order to resolve this issue Martin should punch Incognito.  Report: Dolphins GM Jeff Ireland suggested Martin ‘punch’ Incognito, John Breech, CBSSports.com, November 7, 2013; available at: http://www.cbssports.com/nfl/eye-on-football/24196378/report-dolphins-gm-jeff-ireland-suggested-martin-punch-incognito.

[vi] Sources: Dolphins coaches asked Incognito to toughen up Martin, Omar Kelly, South Florida Sun-Sentinel, November 5, 2013; available at: http://articles.sun-sentinel.com/2013-11-05/sports/fl-miami-dolphins-hazing-1106-20131105_1_richie-incognito-jonathan-martin-safe-and-professional-workplace.

[vii] Jonathan Martin went to hospital, Chris Mortensen, ESPN, November 8, 2013; available at: http://espn.go.com/nfl/story/_/id/9936309/jonathan-martin-checked-hospital-leaving-miami-dolphins.