In 2008, New York Giant Wide Receiver Plaxico Burress accidently shot himself in the thigh at a New York City nightclub. Burress was then indicted for criminal possession of a handgun and he eventually accepted a plea deal. Ben Roethlisberger was suspended for the first four games in 2010 due to violations of the NFL’s personal conduct policy. His suspension stemmed from allegations that he had sexually assaulted a young woman at a bar. Regardless of whether you believe that Burress or Roethlisberger actually committed crimes, they engaged in conduct that that led to serious problems for them personally and professionally and impacted the success of their employer. Some people consider their actions as lacking good judgment or being reckless. I think they were plain stupid.
When an employee does something really stupid, there is often liability that cannot be avoided. Attorneys are not miracle workers. They cannot wave a magic wand and make problems disappear. As comedian Ron White says, “You can’t fix stupid.”
From a human resources standpoint, there are many workplace actions that are “stupid” and cannot be fixed. One example is quid pro quo sexual harassment. Whenever a supervisor conditions job benefits on whether or not an employee engages in sexual relations there is strict liability. This means that the employer is liable for the supervisor’s conduct. While the employer can raise arguments to limit the amount of damages, this is not a position an employer wants to find itself.
Using a company’s internet to search pornography or using a company’s email system to spread racially offensive jokes are both acts of stupidity. Posting offensive messages about a co-worker on Facebook is stupid. Sending sexually explicit messages via text messaging (“sexting”) is also stupid. Unfortunately, these types of misconduct will continue to happen, especially as social media usage increases.
What then can employers do to avoid having to defend acts of stupidity? As an initial matter, employers should make sure that their employees know the policies and rules of the organization. This begins with making sure employees receive employee handbooks and work rules and are told up front what is expected from them. Throughout their employment, employees need to be reminded about how to act in the workplace. Harassment policies should spell out clearly what conduct is prohibited. Training sessions about policies and employment laws should clearly be told that engaging in stupid behavior will likely cost them their jobs and create liability.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
