What Hotel Leadership Should Know About the Emerging Trend of Assault and Battery Claims
By Michael Elkon Counsel, Fisher & Phillips LLP | January 25, 2015
Ask nearly any leader in the hotel industry and/or their HR manager for the definition of a "hostile work environment," and they will have a pretty solid answer. That's because many of them have had to handle employee claims for illegal harassment. Further, these leaders, for the most part, have dealt with such employee issues as inappropriate conduct that have the potential to become a lawsuit.
Now ask these same leaders and their HR managers to provide a legal definition for the term "assault." Getting an accurate definition likely will be more difficult. But it is a legal awareness that is becoming more important for managers to understand in supervising their hotel employees and ensuring that the workplace is not a breeding ground for litigation. While HR managers are accustomed to investigating employee complaints with an eye towards the common federal claims upon which they have been trained, they are now going to have to pay attention to emerging state law claims, as well.
Civil claims for assault and battery have existed for decades, but in recent years, lawyers representing employees have started to make use of these claims more frequently. Summarized below are the primary reasons for this shift:
- Civil assault is typically defined as an instance in which a person demonstrates the intent to hurt another and the victim believes that he/she will be hurt. There is no requirement of actual contact or physical injury, which is why the legal definition of assault is so different than the common English meaning. The legal standard is relatively low and contains a subjective element, i.e. that the victim believes that he/she is in danger of immediate harm. Thus, an assault claim can be hard for an employer to disprove. Likewise, battery is typically defined as a physical touching without consent. Again, the standard here is often fairly low.
- Assault and battery claims regularly come down to contested factual questions, usually between the recollection of the victim and the alleged wrongdoer as to the nature and specifics of the incident(s) in question. Thus, it can be hard to get summary judgment in these "he said, she said" situations. In contrast, federal discrimination and harassment claims involve either adverse employment actions for which the employer is in possession of the relevant information regarding the rationale for the action or a hostile work environment, which is a high burden for a plaintiff to meet.
- Assault and battery claims are based on state law, which means that a plaintiff can avoid federal court (provided that the plaintiff is not also pleading federal claims and diversity jurisdiction does not exist). This is significant because state judges are often less likely to grant summary judgment and are more prone to take a hands-off approach to discovery.
- Most states do not have a broad body of reported case law regarding assault and battery claims, especially in the employment context. This stands in contrast to federal law on discrimination and harassment claims, which is extensive and generally useful for an employer seeking summary judgment on claims brought by a former employee.
In short, assault and battery claims are harder for an employer to litigate in a clean, quick fashion. They are more fact-intensive, there is less law upon which an employer can rely and they are typically litigated in forums that are more favorable for employees. Thus, the settlement value of an assault and battery claim is often higher than that of a discrimination or harassment claim based on the same facts.
Therefore, hotel leaders and their HR personnel should follow some specific steps to help protect against an assault and battery claim. Here are a few such steps:
1. Be Aware That These Claims Are Real - The first step in guarding against a threat is to know that it exists. Thus, it is important for managers to be aware of the applicable definition of assault and battery in their jurisdiction. Although the definitions are generally similar, there are important variations from state to state.
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