Sometimes employees just don’t get along, and employers know they need to intervene when harassing and even threatening behavior occurs on the job. But should the employer launch an investigation if coworkers trade harsh words after hours away from the workplace? 
That was a question put to a group of attorneys who focus on workplace issues, and they advise investigating. The employer reported that the two feuding employees live near each other. When they crossed paths during a weekend, one accused the other of talking about her behind her back. One employee reportedly made threatening remarks including, “I know where you live.”
One of the employees reported the incident when she returned to work, and the employer wondered whether it had a right—or even an obligation—to investigate the incident.
“All employers must take seriously their obligation to maintain a workplace that is free from harassment,” Reggie Gay, an attorney with the McNair Law Firm, P.A. in Greenville, South Carolina, says, adding that employers typically include their commitment to a harassment-free workplace in their handbooks. They also should make sure employees understand that they are to report unwelcome behavior.
It gets tricky when harassment occurs away from work or on social media. Gay says in general, an employer may face liability for one employee harassing another even if the harassment occurs away from the workplace.
“Various courts have held that an employer may be liable for harassment if it knew or should have known about the harassment and failed to take appropriate steps to stop it, regardless of whether it occurred on or off work premises,” he says. “Part of the reasoning is that it can be assumed that if harassment occurs off company premises, it may well spill into the workplace.”
Gay says courts are more willing to let an employer regulate employees’ off-duty activity if it puts the employer in legal or financial jeopardy. “In that situation, you have a legitimate reason for taking disciplinary action for illegal or improper off-duty behavior, especially if it is related to an employee’s job,” he says.
Jo Ellen Whitney, an attorney with the Davis Brown Law Firm in Des Moines, Iowa, agrees. “If an employee reports harassment, bullying, inappropriate conduct, or threats of violence by another employee, you have a right to review the issue and potentially investigate or intervene, even if the incident did not occur on company grounds,” she says.
But Whitney also advises caution. “You certainly do not want to get involved in a turf dispute over whose dog stole whose newspaper,” she says. “However, when out-of-work behavior affects how employees interact, you do have the ability to inquire about it.”
H. Mark Adams, an attorney with Jones Walker LLP in New Orleans, Louisiana, also says when off-duty employee conduct affects or has the potential to disrupt the workplace, “you absolutely have the right to protect your business and your employees by investigating and taking appropriate action to prevent the conduct from escalating.”
“Especially when you know about off-duty conduct that involves a threat of violence by one employee, your failure to take appropriate action could expose you to serious liability if the conduct carries over into your workplace,” he says. “Threats of violence by one employee against another should never be ignored.”
Jerrald L. Shivers, an attorney with The Kullman Firm in Jackson, Mississippi, advises taking a fresh look at the employer’s policies. “Assuming your policy does not address off-duty, off-site issues, you should consider crafting a policy that does,” he says. “Although you do not want to be in the business of policing off-duty conduct, it can often end up as a workplace issue.”