Time to Double-Check the Naughty List
Continuously "Naughty" Employees Could be a Liability

This installment of the Informed Employer is brought to you by that one employee who, despite your best efforts to insulate your business from any number of employment law liabilities, will inevitably go off and do something so colossally stupid that you could not have possibly prepared for it. Yes, just when you think you have drafted every policy and trained your employees accordingly, one of your supervisors takes his sales team to the top of a hill and…

…waterboards a team member.

Yes, that's right: waterboards a team member. In Hudgens v. Prosper Inc., a case pending in a Utah state court, an employee claims that his supervisor led a group of sales employees to a hill top near the company's office and asked for a volunteer who had "loyalty and determination" to participate in a "new motivational exercise." The employee volunteered and was then allegedly held down by a group of co-workers while his supervisor poured water over his mouth and nose. The employee tried to break free from the hold of his co-workers (perhaps because he couldn't breathe?), but the supervisor allegedly directed the other employees to continue to the "motivational exercise" a bit longer. Finally, the employee was released and the supervisor delivered the motivational speech of all motivational speeches. He told his sales team that they should work as hard at making sales as the employee had worked at trying to breathe.

So, you may be asking yourself if there is a lesson to be learned here. Maybe you are wondering if you should contact your favorite Ice Miller attorney to draft an anti-waterboarding policy? Not exactly. The lesson here includes scary phrases like "negligent supervision" and "negligent retention." The employee in Hudgens v. Prosper Inc. also alleged that, prior to his hill top shenanigans, this supervisor had quite a reputation for being a workplace bully. In fact, the employee alleged that this supervisor was known around the office for drawing mustaches with permanent marker on the faces of employees who did not meet performance goals, and also for striking desks and tabletops with a wooden paddle while patrolling work areas. This employer may now have to explain to a jury why it continued to employ (i.e., "supervise") an individual with such violent tendencies.

The lesson here is simple: don't put your business in the position of explaining to a jury why you continued to employ an individual that you knew to be a bully. Get out your list of naughty employees and check it twice. You may not be able to prevent a rogue employee from doing one stupid thing, but you can certainly enforce a zero tolerance policy for workplace bullying or violence and (hopefully) prevent him or her from doing additional damage to your business or its reputation.

If you have any questions about employment law liability, please contact any member of Ice Miller's Labor and Employment Group.

Dec. 8, 2010

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.