EMPLOYERS MAY BE LIABLE FOR OFF-SITE HARASSMENT

EMPLOYERS MAY BE LIABLE FOR OFF-SITE HARASSMENT

Picture this:  an employee says they do not wish to see, be near or even on Zoom calls with someone else, whom they dated and there was a break-up.  Nothing occurred at the worksite, during work or even about work, but the employer may be held liable now, according to a recent California Court of Appeals case called Kruitbosch v. Bakersfield Recovery Services, Inc. This Court of Appeals decision creates a problem for employers, who have traditionally taken the position that off-site/non-work related interactions between employees was — well, none of the employer’s business.  But now, maybe it is.

Non-work related harassment between coworkers may not directly violate the Fair Employment and Housing Act (“FEHA”) but an employer’s inadequate response can transform a non-actionable complaint into a viable hostile work environment claim.

The Kruitbosch decision now creates potential liability to employers for failing to adequately respond to such off-site harassment, not just for preventing harassment, but for how the employer handles the report of the non-work incidents.  This creates significantly new responsibilities for HR operations and the employer must treat every harassment complaint like a workplace claim, regardless of where the incident occurred.  Failing to do so, being dismissive of a claim conduct can increase the employer’s legal exposure.

So, employers should now consider implementing its traditional harassment claim protocols to all employee/employee claims, regardless of the location/circumstances.  That should include documenting all complaints thoroughly, conducting appropriate investigations within legal bounds, and considering reasonable workplace accommodations to minimize contact between the involved employees.

Given these ever-changing risks and potential liability, we are keeping up-to-date on matters and can conduct the investigation and/or advise on these types of employee claims.  We are here to help you plan and grow and protect your business.  Please feel free to contact Dawn at: dawn@eppscoulson.com.

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is likely considered advertising.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.  Epps & Coulson, LLP attorneys and affiliated counsel admitted to practice in New York, California, Colorado, Connecticut, District of Columbia, Massachusetts, New Jersey, Hawaii, Oregon, Texas, European Union, France, England and Wales and Sweden.

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