Reprinted from the August 15, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Employee Threatens Manager…Or Does He?

Minus a zero-tolerance policy for workplace violence, you may need to make a judgment call on what to do when an employee threatens you or another co-worker — especially if the employee denies making the threat in the first place.

“WHAT DID YOU JUST SAY?”
“Hello?” manager Pete Rosen said when he picked up the telephone.

“Hey, Pete, it’s Jeff Lolk. I woke up this morning with severe back pain…I can hardly move. I’m going to need some time off.”

“I’m sorry to hear about your back, Jeff, but I can’t grant you a medical leave,” Rosen informed him.

“What are you talking about?” the employee asked. “The company already approved my request for intermittent medical leave for my chronic back problems.”

“I recently received a memo from Human Resources indicating that you are authorized to use medical leave only for treatment by a chiropractor.”

“What?” Lolk questioned. “That’s $#%*@!& ridiculous!”

“What did you just say?” Rosen asked.

“Nothing,” Lolk murmured. “Looks like I’m going to have to come all the way down there to straighten this out.”

“IS THAT A THREAT?”
About an hour later, Lolk hobbled into Rosen’s office. Rosen showed him the memo he had received from HR. A perturbed Lolk again used profane language and asked Lolk to put the denial in writing.

“You understand, Jeff, that this is out of my hands,” Rosen explained. “I’m just doing what the HR department told me to do.”

“Well, I don’t care what the HR department says, I’m in too much pain to work today,” Lolk said as he turned to leave. “So you and the guys in HR can go $#%* yourselves.”

“Now wait just a minute!” Rosen yelled back at the employee. “You can’t talk to me that way.”

“I’m not on duty,” Lolk went back at the manager. “I can talk to you any way I want.”

“As long as you’re on company property, you must abide by company rules,” Rosen reminded him.

“Then why don’t we take it outside, off property,” Lolk suggested, motioning toward the door.

“Is that a threat?” the manager asked.

“No, it isn’t a threat,” Lolk shot back before storming out of the manager’s office.

Rosen fired Lolk that same day. Lolk then sued under the Family and Medical Leave Act (FMLA). He argued that he had been illegally terminated in retaliation for requesting leave.

An appeals court agreed with a district court ruling that Lolk’s request for medical leave was not a factor in Rosen’s termination decision. Instead, he was fired for cursing at and threatening the manager.

TRUST YOUR INSTINCTS
It may not always be easy to determine whether an employee is truly a threat to your safety or the safety of others in the workplace. Employees may argue that they were joking or you misconstrued what they said or they didn’t mean what they said. They can deny all they want, but you will not be faulted for taking protective measures, including terminating the employee, if either of the following red flags is raised.

Red flag #1: The threat is directed at a person.

Example: Lolk’s suggesting to Rosen that they “take it outside.”

Red flag #2: There is a strong implication of harm to a person.

Example: “When I leave here, I will be taking a bunch of people with me…I have AKs and more ammo than [the county].” The employee who made these statements in a different case was lawfully fired, despite the fact that he didn’t make a threat against anyone.

Compare that to an exasperated employee saying, “I’m going to kill them if they schedule another 8 a.m. meeting.” Violent colloquialisms are part of our speech. They don’t require you to go on high alert, but they do require you to speak to the employee about how inappropriate the reaction is.

RESPONDING TO EMPLOYEE THREATS
If you feel threatened, consider taking the following actions to secure the safety of the workplace.

1. Contact local law enforcement authorities. Have them standing by, discreetly.

2. Place the employee on paid leave. Taking the employee out of the workplace gives the employee time to cool off and facilitates a more effective investigation.

3. Have the employee medically evaluated. A medical evaluation by a trained professional may help determine whether the employee poses a danger to the workplace.

4. Plan the employee’s termination. If dismissal is the appropriate response:

• decide whether it must be done immediately, or whether you can wait for a time when the fewest employees are around;
  
  
• be sure that at least one other HR or management employee is present;
  
  
• have the employee escorted out;
  
  
• immediately notify the appropriate personnel to change door locks, pass codes, etc.

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