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Co-Worker Assaults and Workplace Fights: Understanding the Law When Employees Fight Each Other

Posted By Galluzzo and Johnson LLP || 8-Jul-2011

The workplace can be stressful, and sometimes that stress causes co-workers to get angry enough with each other to engage in physical altercations.  From a  lawyer’s standpoint, however, these cases can be especially complicated for a number of reasons.  The attorneys at Galluzzo & Johnson LLP include three former prosecutors that regularly represent defendants, victims, and employers in these types of matters.  They understand the complex dynamics involved in these cases and how best to represent the interests of their clients in the many different arenas that may be involved.

To begin, a workplace assault can subject the participants to several criminal charges.  The most common of these is Assault in the Third Degree (Penal Law Section 120.00, a Class A misdemeanor), which applies to intentional attacks that result in physical injury.  Where the resulting injury is serious or a weapon is used, the employee could be subject to the Class D violent felony of Assault in the Second Degree (Penal Law Section 120.05).  Even when no one is hurt, but punches are thrown, the participants can be arrested for Attempted Assault in the Third Degree, a Class B misdemeanor (Penal Law Section 110/120.00).  Finally, threatening emails, phone calls, or voicemails by one employee to the other might be grounds for an arrest for the Class A misdemeanor of Aggravated Harassment in the Second Degree (Penal Law Section 240.30).

All of these charges can be defended in a variety of ways, and an experienced criminal defense attorney with a good relationship with the local prosecutor’s office may be able to negotiate a plea bargain whereby the defendant avoids receiving a criminal record in exchange for community service or anger management.

However, in some cases, the assault or injury is so serious that jail is a real possibility.  In those cases, defendants and employers should be especially wary.  Typically, employers conduct internal investigations whereby they interview witnesses and the participants in the assault.  The participants should understand that these statements that they make in response to questioning by their employers can and will be used against them in later criminal or civil proceedings, as the statements are neither privileged nor taken while in the custody of police officers.  There are thus no Miranda rights and no Fifth Amendment rights for the employees, either, so unfortunately, their decision not to answer questions could potentially result in their lawful termination.  (On a side note: The attorneys at Galluzzo & Johnson have used their prosecutorial and investigative experience to assist employers with investigations such as these, and have also represented individuals in connection with their employment arbitrations following workplace assaults).

Generally speaking, employers will not be held liable for a workplace assault.  Some exceptions may apply where it is alleged that the employer was on notice of a “hostile work environment” that contributed to the fight, or failed to provide adequate security to prevent one.  Worker’s Comp also does not usually cover workplace assaults, as intentional criminal acts by an employee are not typically contemplated as routine workplace hazards.  Employers should be aware that victims of workplace assaults typically seek to sue their attackers in civil court, and may attempt to record conversations with their co-workers or employers so as to collect evidence for their lawsuits.

Finally, workplace assaults can result in Orders of Protection being issued by Criminal Courts, and these court orders can make it especially difficult for the participants in the fight to go back to work.  Experienced criminal defense attorneys can sometimes successfully petition the arraignment judge to carve out exceptions to the typical orders of protection such that their clients can return to work without interruption, but employers may have to be prepared to make arrangements so that the employees can work separate and apart from each other.

If you or a loved one have been involved in a workplace assault, you should strongly consider contacting the experienced attorneys at Galluzzo & Johnson LLP.  They have successfully represented many criminal defendants and many civil plaintiffs stemming from workplace violence.  As experienced criminal investigators, they are also able to assist employers in interviewing witnesses and conducting internal investigations into the circumstances of the fight, as necessary.  Call them or email them to set up a free consultation.

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Categories: Assault