My employee has complained that a co-worker sent offensive text messages to their personal device outside of work hours. I told my employee to delete the messages and deal with it outside of work. I don’t feel like this is something I should have any concern about, since it did happen outside of work hours. My business partner seems to think we could be liable, especially seeing all the recent headlines. Should we be concerned? Can we be liable for behavior outside of work?
YES! Companies can potentially be held accountable for their workers’ behavior regardless of where and when the potential harassment occurred, and whether the offensive content appeared on an employee’s personal device.
Employers should take all complaints seriously. Proceed by conducting a thorough investigation. You should ask the person who complained to share the details about what happened and who may have witnessed the incident(s). Then interview all the witnesses. Once you’ve gathered evidence, it’s appropriate to get the accused person’s side of the story. If you have reason to believe one employee acted inappropriately toward another, a review of the texts should be part of your investigation. A victim is more likely to be willing to share, but you should be mindful that there isn’t any recourse if an employee refuses to produce texts. In that case, move forward by collecting a statement from all parties involved. Be mindful that this documentation could see the light of day in court or in any kind of hearing that demands to know if your company took steps to investigate this incident. The key to a thorough investigation is to make sure to consider all the facts. If the behavior is in violation of a company’s harassment policy (or the law), it is the employer’s responsibility to address it immediately to protect their employees from harassment. Make sure to consider all the facts and apply appropriate consequences.
Now is a great time to make sure your policies are very clear. Cardinal can review your current Harassment-Free Workplace policy or help you develop and implement a new policy keeping you legally compliant with State and Federal laws. Just give us a call 1.800.342.4742.