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MANAGERIAL

Employers Face Legal Considerations

Is Fear for Personal Safety Valid Reason to Escape the Late Shift?

Reader Question: We sometimes run experiments for several days 24/7, each taking turns at the shifts covering the late-night hours. Now a new technician tells me he is afraid to come onto the largely deserted premises on weekend nights (yes, our building is in a "rough" part of town). How much weight should we give personal preferences in this situation? If this fellow is excused, somebody else will have late-night double duty.

Expert Comment:

Notwithstanding the technician’s “personal preferences,” the answer to this question is dictated in part by the following legal considerations:

First, under Occupational Safety and Health Administration (OSHA) rules, you as his employer have a duty to provide a safe workplace for him and everyone else under your supervision. If your staffers are required to work alone with no security in a “rough” part of town, it could be that you are failing to meet this requirement. There are ways you could make the workplace safer, including hiring a security guard for the night shift, installing alarms, installing better lighting, requiring a buddy system for technicians who work at night, security escorts, etc.

Another legal consideration is whether you are breaching any kind of implied contract made at the time of his hiring. Re-examine the job description for his technician position and exactly what he was told during the interview process. For instance, if the technician at that time expressed a desire not to work late at night because of safety fears, and you or an HR manager told him that he would not have to work those hours, that could constitute an implied contract. However, if he was told at hiring that he would be expected to work on experiments that might run for several days 24/7, that he sometimes would have shifts that included the “wee hours,” and he took the job with that agreement, this might constitute part of the official job duties he is required to perform.

Also, to avoid an employment discrimination lawsuit, be careful to treat all employees similarly. This means that any rule or policy you make with regard to this technician must be applied to all other technicians.

In one actual case, female workers at a Philadelphia firm said they might quit if required to work the late shift, so the company adopted a policy to excuse them from it. That led some male workers to sue for employment discrimination based on gender. The court ruled in their favor. The lesson: Make sure your policy treats everyone meeting the same job description equally.

You certainly want to do everything possible to avoid an incident of violence at your workplace. That means not only doing everything possible to keep everyone safe, but also avoiding any negative public-relations image that could result to your company or lab if an incident occurred. Considering all the above — and consulting with your HR and legal departments — will help you make the right decision in your specific situation.

Comments by Melissa Fleischer, Esq., a management-side employment law attorney with over 20 years' experience. She is the founder of HR Learning Center LLC in Rye, N.Y.

She was the principal speaker of the past teleconference, "Lab Violence: Lessons Learned", which is available via CD-ROM, MP3 File, and PDF Transcript.

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