Nonfeasance in the Workplace
Incidents of nonfeasance can create legal liability and employee discipline
Nonfeasance isn’t a word you hear thrown about often in Human Resources circles, but you probably should be aware of it. The simple definition is “the omission of some act that ought to have been performed.”
Nonfeasance is talked about in medical terms quite a bit. If you’re walking through the park, and you see a person collapse on the ground, you’re under no legal obligation to provide first aid or call 911. Morally, you should, of course. But, if you are a doctor and your patient collapses in your office, you can’t just step over her and go on to the next patient.
The difference is clear to most people, but how does this relate to human resources? There are two different areas you need to focus on: within the Human Resources department and within the rest of the company.
Nonfeasance Within HR
Human resources employees have an obligation to act in many situations when not acting makes the company legally liable. For instance, if an employee comes to you and says, “Tim is sexually harassing me,” the company is liable if you don’t act.
Now, if this same person gave a colleague who was not in management the same information, the same sort of legal liability does not attach. But for an HR or management employee not to act on a claim of sexual harassment is nonfeasance.
The same is true for any illegal behavior—racial discrimination, securities fraud, or time card falsification. Human resources must act as soon as they are made aware of the illegal behavior. For this reason, if you wish to report a problem in your company, you should do so via an email with the subject line: “Official complaint of [sexual harassment, FMLA, interference, etc.].”
When you complain in writing in this fashion using this subject line, the company official, whether a manager, a Human Resources person, or a compliance officer, cannot claim that they were not aware of the problem.
Because the law for sexual harassment, for instance, allows the company to correct the problem promptly without punishment (either via fine or lawsuit), nonfeasance can cost the company a fortune. It’s critical that HR employees understand when they have a real need to act—quickly and with determination.
Nonfeasance in the World of Regular Employees
Depending on your industry, the obligation of a regular employee to act will vary greatly. In the medical world, of course, the potential consequences are very, very high. But, that’s not the only situation in which nonfeasance matters.
Dictionary.com’s legal dictionary uses the example of a lifeguard in their explanation of nonfeasance. They write:
“Generally a person will not be held liable for a failure to act unless he or she had a preexisting relationship with the injured person. For example, if a bystander sees a stranger drowning and does not attempt a rescue, he cannot be liable for nonfeasance because he had no preexisting relationship with the drowning person. The bystander would not be liable for the drowning even if a rescue would have posed no risk to him.
“However, if the victim is drowning in a public pool and the bystander is a lifeguard employed by the city, and if the lifeguard does not act to help, she may be held liable for the drowning because the lifeguard's employment places her in a relationship with swimmers in the pool. Because of this relationship, the lifeguard owes a duty to take affirmative steps to prevent harm to the swimmers.”
If your business involves people’s safety, you can bet that nonfeasance is an important part of your company policies.
So far, the discussion has addressed legal obligations of health and safety, but your company can also have policies that require acting even if no one’s life is on the line. For instance, if you have a policy that employees must greet each customer within one minute of them walking in the door, an employee who ignores a customer is participating in an incident of nonfeasance. The employee had an obligation by policy to greet the customer, but they did not.
You don’t generally use this fancy word, nonfeasance, to describe what is simply “doing your job.” But, it is an example of an employee's non-compliance with a policy. This situation is different from acting poorly or misunderstanding the work that needed to be done. It’s a case of not acting when the employee should take action and the policy stated the required action.
Managers need to have clear expectations that are effectively communicated to employees about what is and what is not expected of employees. Inform employees clearly that not acting can result in discipline up to and including employment termination. Employees that have clear guidelines are more likely to accomplish what you ask them to do.
Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. The site is read by a world-wide audience and employment laws and regulations vary from state to state and country to country. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. This information is for guidance, ideas, and assistance.