The tragic shooting deaths of two employees at the Kraft Foods plant in Philadelphia is a stark reminder that violence can happen anytime in any workplace, large or small.  The following are some steps that can be taken at relatively minimal cost to diminish the likelihood of violence in the workplace:

• Communicate a zero tolerance policy to employees through employee handbooks and periodic memos or other notices.  Any act of violence or threatened act of violence is grounds for discharge.  No second chances regardless of the circumstances.  Be sure to carry out the policy if an act of violence or threat occurs.

• Hold training for staff on how to defuse workplace conflicts that could lead to heated tempers and violence or threats.

• If an employee is discharged for violence, inform him or her that a return to the workplace will result in the police being summoned.

• Inform other employees to immediately summon police if the offender returns to the workplace.

Larger employers with larger budgets may have to consider more expensive measures to protect their employees including security systems to prevent unauthorized access to the premises.  Progressive employers may also consider employee assistance programs to provide counseling and treatment to stressed out or mentally disabled employees before the situation becomes volatile.

With regard to the Kraft Foods incident, I have only the information reported in the Philadelphia Inquirer.  However, when evaluating whether the incident could have been prevented, or at least could have ended without bloodshed, I wonder whether this was the first time the perpetrator acted out violently or whether earlier threats were ignored?  The company correctly escorted the employee from the building to her car before the incident.  While no one can blame the security guards for opening the gate with a .357 magnum pointed at them, how did the perpetrator gain access to the building?  And wasn’t there a way for the security guards to communicate the danger to those inside, especially the three employees who had just given statements against the shooter, so they could be hidden away in a locked room somewhere until police arrived?

This has been a good year for lawyers.  We have the Lower Merion laptop fiasco still ongoing.  The school district’s use of spycam technology without an established policy generated a class action lawsuit, a second individual lawsuit, an internal investigation by outside lawyers hired by the school district, investigations into potential criminal conduct by the U.S. Attorney’s office, and work for attorneys hired by those being investigated.  The class action alone has generated legal fees in excess of a million dollars.  The court recently awarded the plaintiff’s attorney a couple hundred thousand dollars for his success in stopping the spycam practice and compelling the school district to craft a written policy with regard to use of the computers.

More recently, we have the drama unfolding at the Philadelphia Housing Authority.  A woman is suing the director, Carl Greene, and seeking $375,000 for sexual harassment.  The PHA Board has hired attorneys to investigate why they were not informed of three earlier sexual harassment settlements involving Mr. Greene.  Authorities are investigating various questionable activities that took place at the PHA during Mr. Greene’s tenure including deductions from employees’ pay for functions such as “teambuilding” and dinners honoring Mr. Greene.  And now Mr. Greene has sued the PHA Board for, among other things, damaging his reputation. 

Sadly, so much of the legal expense could have been avoided through sound written policies and good employment practices.  In the Lower Merion case, a policy establishing specific circumstances under which district employees could activate the technology, proper staff training, and consent forms notifying parents should have cost only several thousand dollars even at big law firm rates. 

At the PHA, one wonders how a director with three sexual harassment settlements costing several hundred thousand dollars obtained or kept his job.  No doubt, the PHA has a written policy forbidding sexual harassment.  However, when the top individual in an organization routinely disregards policy, the likelihood of the policy being carried out throughout the rest of the organization is severely diminished.  While the law protects subordinate employees who bring attention to their superiors’ inappropriate behavior in a good faith effort to enforce the policy, few employees are willing to risk their jobs.  Top officials for all employers, whether public or private, must give more than lip service to the written policies and allow employees to feel that they will be heard and taken seriously when they bring attention to improper workplace conduct.  Otherwise, the policies are not worth the fees paid for them and the lawyers will be kept busy cleaning up the mess.

In the latest example of powerful public officials abusing their offices, we have Carl R. Greene, executive director of the Philadelphia Housing Authority.  Greene is accused of groping Elizabeth Helm, an interior designer, at a Center City restaurant while they were discussing her promotion.  Greene has been suspended for 30 days while PHA board members try to learn why they were not told of three earlier harassment claims involving Greene in prior employment which were settled confidentially for $98,000, $200,000 and $350,000 according to the Philadelphia Inquirer.  Greene is said to be undergoing medical care for “stress.”  Helm is now harassing the taxpayers of Philadelphia by adding $25,000 per day to her original $300,000 demand while the PHA balks at signing a settlement agreement.  You didn’t think Mr. Greene would be held accountable for his actions, did you?

Under the federal anti-harassment law known as Title VII (the Civil Rights Act of 1964) and the Pennsylvania Human Relations Act, only the employer is deemed liable for acts of harassment committed by those whom it employs.  The perpetrator cannot be sued.  Consequently, it is the taxpayers who pay to settle the claims arising from public officials’ indiscretions while the officials are permitted to repeat their indiscretions elsewhere or seek medical care for “stress.”  In Mr. Greene’s case, nearly a million dollars of public funds will have been wasted because he can’t keep his hands to himself.  Think of the public parks that could have been built, the emergency equipment purchased or roads paved with that money!  While insurance may cover some of the loss, government entities usually have large taxpayer-funded primary coverage.

In Ms. Helms’ case, she may be able to sue Greene personally for assault and battery because of the physical contact.  With a $300,000 annual salary, Greene should be hit where it hurts.  However, so far, it seems Ms. Helms is content to hold the City and its taxpayers hostage.  And while Ms. Helms did not deserve to be groped and is deserving of some compensation under the law, her $25,000/day demand shows she’s all about the money.  Ms. Helms and her attorney will ultimately receive a lucrative settlement.  Mr. Greene will move on to some other six-figure employment or may even stay where he is protected by his politically connected friends.  The City of Philadelphia taxpayers are the real victims.

In a 9 – 0 vote, the Supreme Court recently reversed a decision of the 9th Circuit Court of Appeals and held that an employee does not have a reasonable expectation of privacy in text messages sent on an employer provided pager even when the employer permitted personal use as long as the employee paid the overage charges. 

In an earlier blog regarding the case of City of Ontario v. Quon, I foolishly placed my money on Mr. Quon. (Hence, my aversion for Atlantic City and the stock market).  Mr. Quon was disciplined after his employer found and reviewed personal sexually explicit text messages sent via his pager.  Because the employer deviated from its written policy by allowing personal use of the pagers as long as the employees paid the overage charges, I sided with the 9th Circuit in concluding Mr. Quon had a reasonable basis to believe his personal texts would be kept private.  Not so, sayeth the Supreme Court.  If it is on the employer’s communication equipment, the employer’s interest in monitoring its use takes precedence over employee privacy.  The fact that the material was sexually explicit did not diminish the employer’s right to review the texts in their entirety.  Writing for the court, Justice Anthony Kennedy stated “the search had a legitimate business purpose and was not excessive in scope.”  (What can be more excessive than reading the texts in their entirety?)  A unanimous vote was even more surprising given the current composition of the Supreme Court.

The ruling should set off alarm bells for employees and church bells for their bosses, but the message is clear.  Employees should not use company provided equipment to send anything they would not want their employer to read or hear.  Period.  Moreover, employees may expect to be disciplined and even terminated for personal use of company provided equipment.

Pennsylvania’s “Mini-COBRA” law has now been in effect for almost a year.  The Mini-COBRA legislation signed by Governor Rendell back in June 2009 extends to small employers not covered by federal COBRA regulations the responsibility to offer separated employees the opportunity to purchase up to nine months of extended coverage on the employer’s plan.  Failure to notify separated employees of the availability of the benefit may result in penalties and possible damages if a loss of coverage results in unpaid medical bills.  (Please read my earlier blog entitled COBRA Mistakes Can Be Costly!).

Pennsylvania’s Mini-COBRA applies to all businesses with 2 to 19 employees who already provide group health insurance.  It does not require small businesses who do not currently provide health insurance to their employees to offer a group health plan.  Here are some of the distinctions between the PA Mini-COBRA and existing federal COBRA:

PA Mini-COBRA

Applies to employers with 2 – 19 employees

Provides 9 months continuation coverage

Insured must have been enrolled for at least 3 months

Applies only to group health plans through third party  insurance companies

Employer may charge up to 105% of group rate

Employer must give COBRA notice within 30 days

Federal COBRA

Applies to employers with 20+ employees

Provides 18 months continuation coverage in most case and 36 months in special circumstances

Insured must be covered on day of qualifying event

Applies to self-insured group health plans as well as plans insured through third party insurance companies

Employer may charge up to 102% of group rate

Employer must give COBRA notice within 15 days

The 65% premium reduction provided for under the federal stimulus bill has expired.  Employees selecting the continuation coverage must pay the full premium.