This is not the “battery” or “assault” in your flashlight or next to the pepper shaker. The “battery” and “assault” that employers need to understand in the HR context has to do with actual or threatened physical misconduct allegations in the workplace. When an upset employee presents such a complaint, use of the term “assault” or “battery” in the investigation report or management discussions requires precision. Employers can potentially be vicariously liable for an assault or battery that occurs in the workplace if it was reasonably foreseeable and occurred at or in relationship to the workplace. Damages for assault and battery may not be covered by workers compensation exclusive remedy provisions. Potentially, there could also be defamation issues as well and unemployment compensation implications. So understanding the precise definition of these common terms is important.
In essence, an “assault” is an intentional act made with intent to cause reasonable apprehension or fear of immediate harmful or offensive physical contact. A “battery” is intentional, unpermitted physical contact.
Many actions that are sometimes given the inflammatory and legally relevant characterization as a “battery” or “assault” are not. For example:
- There needs to be intent. A negligent physical act cannot be an assault or battery.
- The maxim “words will never hurt me” applies – strong words or threats alone are not an assault or battery – unless they are exhibited with such anger as to provide the reasonable apprehension that can sustain an assault.
- There is an element of reasonableness in a reported assault as well as a question of permission in the context of a battery that should be part of an investigation.
Takeaway: Reports of alleged “assaults” and “batteries” in the workplace are often communicated in an emotional and upset atmosphere. The employer should keep in mind the technical, legal definitions of these terms in the investigation, response, and reporting process.