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New risk: employee assault & battery lawsuits

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in Employment Law,Human Resources

While you likely have a grasp on the definition of unlawful harassment and discrimination, have you thought about what constitutes assault, battery and “intentional infliction of emotional distress” in the workplace?

It’s an important concept for HR professionals to learn because employees’ attorneys these days are filing an increasing number of state-law assault claims based on conduct similar to that which gives rise to basic harassment suits.

“Civil assault is typically defined as an instance in which a person demonstrates the intent to hurt another and the victim believes that he or she will be hurt. There is no requirement of actual contact or physical injury,” writes attorney Michael Elkon of Fisher & Phillips in a recent Society for Human Resource Management (SHRM) report. “The legal standard is relatively low and contains a subjective element. Thus, an assault claim can be hard for an employer to disprove. Likewise, battery is typically defined as physical touching without consent.”

Assault claims typically come down to “he said/she said” situations. That means it can be difficult for employers to win quick summary judgment decisions. Plus, because assault and battery claims are based on state law, employees avoid federal court, where summary judgments are handed to employers more freely.

As a result, the potential settlement value of assault and battery claims is much higher than harassment claims based on the same facts. Thus, more attorneys are throwing assault claims on the pile when filing employment suits.

How to respond? Elkon’s report suggests employers:

  • Listen for important terms from employees that could signal assault claims, such as fear or any kind of physical contact.
  • Ask the right questions, such as “Were you actually touched?” "Did you feel like you were in danger of an injury?” and “Do you need to speak with a doctor or mental health professional?”
  • Use the trend as a training tool. Point to the new risks to explain why supervisors should avoid threatening remarks, fear-inducing behavior and physical contact with employees.

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