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With confrontations between angry customers and employees just trying to do their jobs increasing during the COVID-19 pandemic, employers need to make sure they have policies in place to protect workers who are confronted.
As well, many customer-facing companies — mainly retailers, restaurants, retail printers and entertainment venues — have seen an uptick in customers sexually harassing employees or racially attacking them, as civility in society seems to have taken a turn for the worse.
If you are not doing all you can to protect them against violence and harassment by customers or vendors through training and policies, you could be sued for those failures.
The typical employment practices liability insurance (EPLI) policy only covers costs related to claims of harassment, discrimination and other workplace ills perpetrated by company insiders, and not to claims costs related to harassment of your staff or violence against them by customers or outsiders if an employee decides to sue you for not protecting them.
However, there is a rider that can be purchased: third party EPL coverage.
To protect your company from an employee lawsuit, you must first safeguard your workers.
Protecting your employees and company
To protect your organization from third party claims, you need to go beyond just purchasing coverage.
If your organization has a lot of interaction with the public, it is especially vulnerable to EPL claims spurred by the behavior and actions of third parties against one or more of your staff. Also, because you care about them, you should do all you can to protect them.
You should implement policies and procedures that address discrimination and harassment issues, both from the standpoint of an employee’s actions and the actions of third parties. EPLI carriers are increasingly requiring employers to implement these practices before they will issue a policy.
Policies are not enough if employees aren’t adequately trained. New employee orientations should include a presentation on your harassment/discrimination policies.
The training must also include how to report and handle the situation when a customer is harassing or threatening one of your team. Topics include:
- Ways to de-escalate a situation.
- Having employees experiencing harassment say a safety word to a nearby worker, so they can take a break and get away until the customer leaves and/or have a manager intervene.
- Encouraging staff to report to their manager if a certain customer continues harassing them each time they come in.
- Emphasizing the fact that you won’t retaliate against staff who complain about a threatening or harassing client or vendor.
- Calling law enforcement if a customer’s anger and actions are escalating.
- Training your employees to walk to their cars in groups after their shifts for safety reasons after a confrontation during their shift.
Employees must be periodically retrained through departmental meetings. To maintain the effectiveness of departmental training sessions, be sure that supervisors are provided with copies of all policy updates and procedural changes.
An employer is liable for third party harassment or discrimination just as it would be for harassment by a co-worker — that is, the employer is liable if its behavior regarding the harassment is negligent.
Negligence means that the employer knew or should have known of the harassment and failed to take appropriate corrective action.
As mentioned, a typical EPLI policy won’t cover your legal expenses, settlements or court judgments if the harasser is a customer or vendor. For that you would have to purchase third party EPLI. These policies cover your firm if you’re sued by an employee over:
Harassment by an outsider. This can include unwanted sexual advances or requests for sexual favors. Both verbal and physical conduct, as well as other forms of harassment that create a hostile or offensive work environment, are covered. Some policies also cover accusations of mental anguish, emotional distress, humiliation and assault.
Discrimination by an outsider. This includes discriminatory practices against one of your staff based on their race, religion, age, sex, national origin, disability, pregnancy or sexual orientation (such as a customer refusing to be served by someone because of their race).
In some cases, EPLI carriers may not provide third party coverage to firms with a high potential for claims. Instead, they might offer limited coverage, like accusations of discrimination, but not harassment claims.
If you have staff dealing with customers regularly, this kind of insurance can protect your firm in case you are sued by a staff member for not doing enough to prevent customer harassment or discrimination.