Attorney Joe Turner weighs in on this complicated but serious issue.
I am in a Partnership with four other Physicians. One of the Partners fancies himself a comedian. He likes to send out joke emails to the entire staff and will often add improper comments to serious ones. The problem, aside from being immature and distracting, is that often times, the emails are highly inappropriate and sexual in nature. They usually also contain profanity. Some of our employees have come to us to let us know they don’t enjoy these kinds of jokes. The other Partners have tried to talk to him about his behavior, but he just tells us to “lighten up” and refuses to change his behavior. He is convinced everyone either appreciates his humor or should just get thicker skin. The other Partners and I have talked it over and we feel like if he is allowed to continue, it will result in a harassment lawsuit against him and the Partnership. We also do not appreciate the unprofessionalism which we worry could extend into interactions with patients and vendors. Ideally, we would just like him to act like a professional and do his work. Our operating agreement is silent on this subject. So, how does a Partnership, that has already been formed, go about adding rules that one partner most likely will not agree to? Our top priority is to avoid lawsuits if at all possible, whether it be from harassed employees or angry partners.
Dear Dr. Dismayed,
It is good that you are thinking proactively in this situation, as the best way to avoid a lawsuit is to recognize the potential for one and immediately curb the potentially harmful behavior. Employee grievances should never be taken lightly, regardless of whether the humor can be considered harassment which is prohibited by law. The law simply provides a baseline for your conduct but will not necessarily promote a strong working atmosphere without additional policies implemented and enforced by you. If you do not have a Human Resources professional already, I highly recommend reaching out to someone experienced in Human Resources to navigate these complicated issues.
The New Mexico Human Rights Act prohibits sexual harassment in any workplace without a specific limitation on the minimum number of employees. Many employers have a mistaken belief that they can only be cited for harassment when they have fifteen (15) or more employees, but that restriction was removed on June 14, 2019. Sexual Harassment occurs when someone makes unwelcome sexual advances, requests sexual favors, or spreads other verbal or physical conduct of a sexual nature in a workplace. This conduct must also affect an employee’s compensation or the terms and conditions of employment. Even if the unwelcome conduct is not explicitly tied to the terms of employment itself, it can contribute to a hostile work environment, which in turn could be read to impact a person’s employment and their perceived opportunities with your business.
In this instance, I do recommend implementing changes and attempting to adopt new workplace policies which would apply to your employees as well as the partners. Amendments to an operating agreement and implementing new handbooks are not at all unusual. There are very few businesses who can predict with total accuracy which policies they will need in the future.
Depending on the terms of your operating agreement, you may be able to implement these new policies without the agreement of the Partner in question, as you hold a three person majority. Regardless, it may be valuable or necessary to include all Partners in this process. There are many alternatives to resolving this dispute without a lawsuit if that is your goal. Binding Arbitration and Mediation are both areas that can help Partners compromise on their behavior and work out a deal to avoid further conflict. By contacting an attorney, he or she can look at the specifics of your situation and can help you navigate what options will be best for moving forward with minimal conflict, if possible, while ensuring you and your business are properly protected from potential harassment suits in the future.
Best of Luck!
Do you have issues with one of your business partners? Could you use some assistance with drafting or amending an Operating Agreement? Business Law Southwest can help ensure your work place is a professional one. Contact us today.