Reprinted from the March 1, 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.

Violence Is Violence, It’s No Joke

When faced with a violation of a zero-tolerance policy, you have no choice but to fire the guilty employee, even if you think the violation is marginal. Avoid employee confusion over those “marginal” incidents, such as an act of violence versus a joke about violence. There may be a difference in the intent and outcome of the two actions, but the penalty is the same.

CHOKING IS CHOKING, NOT JOKING
Luce Wallace asked her manager, Trudy Tewksbury, for a schedule change when her child entered grade school. Tewksbury considered the fact that a change would affect Wallace’s co-worker, Odetta Gladstone. The manager ultimately decided it would have only a minor effect and granted Wallace’s request.

“You had a problem with your work schedule so you cried to Trudy about it?” Gladstone asked Wallace in the lunchroom the day she found out about the change. Her tone was stern, but there was a smile on her face.

“I didn’t ‘cry’ about anything. It was a legitimate request,” Wallace responded defensively.

Gladstone then walked behind Wallace and grabbed her around the neck in a mock chokehold, shook her lightly, and said, “Thanks a lot! Now I have to get up even earlier in the morning. It’s all because of you!” She released her after a few seconds.

“Hey!” Wallace yelled. “Why is it such a big deal that you have to wake up a half hour earlier?”

“I was only joking around, Luce,” Gladstone responded.

“I know. You just caught me off guard,” Wallace told her.

The incident passed quickly, as the colleagues moved on to talking about Wallace’s daughter.

Deep down, Wallace was upset. The next day, she reported the incident to Tewksbury.

“Did you feel threatened?” the manager asked.

“No. But I’m a little offended. Odetta and I have been friends for a long time. It surprised me that she would go as far as pretending to choke me, especially over something so minor.”

MISCONDUCT IS MISCONDUCT, NOT MISJUDGMENT
Tewksbury knew the company had a zero tolerance for violence policy, and suspended Gladstone for three days pending an investigation. She recounted the events to the corporate office, explaining that Wallace never felt threatened, Gladstone only meant the act as a joke, and she had never acted out in such a way before. All of that did not matter, though. They determined that Gladstone should be fired for violating the zero-tolerance policy.

“But I honestly didn’t mean any harm, and Luce didn’t get hurt. She knew I was just kidding. Afterwards, we chitchatted for a while, so she couldn’t have been too upset about it. Why do I have to lose my job over it?” Gladstone pleaded. “I am really sorry about what I did.”

“The company makes no exceptions to its violence policy. Zero tolerance means there is no tolerance for even joking about violence, and violations of the policy result in termination,” Tewksbury explained.

Gladstone reluctantly accepted her fate and moved on, right to the unemployment line. But the company fought her unemployment claim and won. So she appealed the decision to a state court. She argued that because she was only joking around, she was not guilty of misconduct that would disqualify her from receiving unemployment benefits.

The court didn’t agree. It held that joking about violence violated the policy, and Gladstone’s action showed a “willful or wanton disregard” of the company’s interest in having a violence-free workplace and its expectations of employees’ behavior.

ACTION TIPS

• A dissenting judge regarded the act as a “good-faith error in judgment,” which would not disqualify Gladstone from receiving unemployment benefits. Educate employees on what zero-tolerance means, so they do not make similar errors in judgment that will call for their termination. Clearly explain the following.
  
  
  
• Zero means zero. Absolutely no jokes or other physical or verbal acts alluding to violence will be tolerated. If you make exceptions, you will undermine the effectiveness of the policy.
  
  
  
• Intent is not an issue. It doesn’t matter whether there was no intention to harm.
  
  
  
• Outcome doesn’t matter either. The policy is not zero-tolerance for physical injuries. You do not have to wait until someone gets hurt before taking action.
  
  
  
• The perception or reaction of the “victim” will not minimize the violation. Even if the victim did not feel threatened and knew the employee was kidding, the policy has still been violated. You do not even have to wait for the victim to complain. If you witness the event or another worker reports it to you, you must act.

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