Bob E. Lype & Associates - Attorneys at Law in Chattanooga, Tennessee
Bob E. Lype - Attorney at Law in Chattnooga, Tennessee
Client-centered service in a general civil practice, with an emphasis in employment law matters, trial and appellate work, and general business advice.
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Workplace Violence – What You Can (and Should) Do

Taking steps to protect employees is an employer's obligation, and failing to do so could have expensive consequences.

We have all heard the horrible stories of postal workers going on shooting rampages, and we have seen news coverage of similar killing sprees at other places of employment. However, workplace violence involves much more than homicidal binges by disgruntled workers.

According to statistics from the Department of Justice, there are 2 million assaults annually in the workplace in America. By far most of these are "simple" assaults which lead to non-fatal injuries, but even so, they seriously disrupt employees' lives and employers' businesses. Statistically, Americans have a greater chance of being the victim of an assault at work than away from work.

Moreover, approximately half a million "aggravated" assaults, rapes, robberies and murders occur in the workplace each year in America. Homicide is the third leading cause of fatal occupational injuries for all workers (the second leading cause for female workers), accounting for more about 11% of work fatalities each year.

Who are the perpetrators, and which employees are most at risk? One of the first steps in preventing workplace violence is knowing who are the most likely perpetrators, as well as which employees are most at risk. Studies show that certain groups are more likely to be perpetrators of violence in the workplace, and often victims share certain characteristics.

Many violent acts in the workplace are committed by strangers, or "criminal perpetrators." These are persons who have no legitimate reason to be at the workplace, and who have no relationship with the employer or the employees. These perpetrators typically commit violent acts in the course of committing a crime, such as robbery, burglary, shoplifting or trespassing. Studies show that most workplace homicides are committed by these strangers. The employees most at risk of violence committed by a criminal perpetrator are those most likely to be targets of thieves or robbers, such as convenience store clerks, drivers, small store proprietors or managers, and others who handle money. Also at risk are employees who work alone, or who work late evenings or early mornings.

Besides criminal perpetrators, clients, customers or business patrons sometimes make threats or engage in violent behavior in the workplace. These are persons who have a legitimate relationship with the business, including patients in the healthcare fields. In fact, healthcare workers, such as nurses, are the most frequent victims of crimes by "clients or customers," followed by schoolteachers. In addition, receptionists and other employees who have the most public contact seem to be more at risk.

Employees (present or past) are responsible for about 7% of workplace homicides. In difficult economic times, it is not hard to imagine a laid off or disciplined worker bearing anger at his supervisors or resentment against other employees. Supervisory employees who discipline workers are frequently victims of these assaults, although attacks against other co-workers are not uncommon.

Finally, family members, acquaintances, and persons who have personal relationships with employees are sometimes perpetrators of violence at the workplace. In most cases, these violent acts are a continuation of domestic violence outside the workplace. About 5% of workplace homicides are committed by these individuals. Statistically, these perpetrators (and, in fact, most perpetrators) are far more likely to be males. Victims of violence from these perpetrators tend to be females, but males are also at risk as bystanders, perceived romantic interests, etc.

The "costs" of workplace violence. First and foremost, there are serious psychological costs when an employee is injured in an act of workplace violence, both to the injured employee and to the morale of the rest of the workforce. These costs are difficult to measure, but they are nonetheless real. Employee efficiency and effectiveness can be severely hurt by an incident of workplace violence and the resulting anxiety, stress, grief and fear.

Beyond that, nonfatal injuries sustained in acts of workplace violence usually result in missed work, and more than half of the employees who miss work for these reasons miss at least three days. There is a higher rate of employees simply quitting after such an incident. If a serious incident occurs, it is not unusual for a business to close down for several days. While these costs are difficult to calculate, many estimates place them in billions, or even tens of billions, of dollars annually across America.

On top of those costs, employers may also face legal liabilities for their acts and omissions (discussed below).

Potential employer liability. The Occupational Safety and Health Act (the OSH Act, administered by OSHA), which applies to virtually all employers, requires an employer to furnish employees a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." If an employer has reason to know of possible workplace violence (e.g., threats, intimidation) but does nothing to protect its employees, OSHA may impose civil fines and penalties of $5,000-20,000 per violation, depending upon the seriousness.

Apart from OSHA, the employer may face liability for workplace deaths or injuries under various common law claims. Employers should bear in mind that workplace violence may not only result in injuries to employees, but also to customers, patrons, visitors, vendors, etc.

In short, if an employer fails to exercise reasonable care or control over employees to prevent foreseeable injuries, the employer may be liable. What is "foreseeable," however, is highly debatable. An employer may be liable for "negligent hiring" if it knew or should have known that an employee was somehow dangerous or unfit to perform his duties. For example, if the employer failed to conduct a basic background check which would have disclosed a violent criminal history, it would be arguable that the employer was negligent. Likewise, once an employer has actual knowledge of an employee's violent tendencies, if the employer fails to take reasonable precautions and someone is injured, the employer may face liability for negligent retention or supervision of the violent employee.

If one employee injures another employee, rather than a visitor or guest, then there may be questions as to whether the injured employee is limited to seeking recourse under workers' compensation law. If an employee is injured in an assault which is "connected to" the employment, then the employee may be limited to workers' compensation benefits and unable to sue the employer under a common law negligence theory. On the other hand, when a clearly private dispute spills over into the workplace resulting in an injury, workers' compensation law probably will not cover the injuries, and the employee may be able to pursue a common law negligence claim against the employer. Thus, when a stranger assaults an employee, and when the employment put the employee in harm's way, there is a strong argument that the employee should be entitled to recover under workers' compensation, but he would not be able to sue the employer under a negligence theory. On the other hand, if a co-worker assaults an employee solely because the co-worker believed the employee was having an affair outside the workplace, there is a strong argument that workers' compensation would not be triggered. Thus, if the employer was somehow negligent in not preventing a foreseeable altercation, it might be liable to the employee. Bear in mind that any recovery under workers' compensation law would be limited by statutory provisions, and would not include recovery for difficult-to-measure "pain and suffering" and other general damages. On the other hand, recovery under a negligence theory would allow such damages, and generally speaking the employer's risk of liability is much greater. These cases are very fact-specific and sometimes the outcome is difficult to predict. Still, a prudent employer will recognize this potential liability.

Of course, if a non-employee is injured in an act of workplace violence, then there is no workers' compensation coverage, and the employer faces possible liability under common law negligence theories.

How significant is the risk of liability for employers? Consider these cases: in Asheville, North Carolina, an employee with known violent tendencies walked into a manufacturing and warehouse facility and killed three employees with an M-1 rifle. Despite knowing of the employee's violent tendencies, managers working for the employer decided not to do anything, although it was suggested that they bring in an armed security guard. In May, 1999, a jury returned a $7.9 million verdict against the employer in favor of two slain co-workers (although recovery was denied for one injured and one slain management worker). A Connecticut jury awarded an Amtrak supervisor who was shot by an employee with known violent tendencies $3.5 million. A $5.9 million verdict was returned against a California temp agency for a fatal stabbing committed by an employee. A Michigan jury awarded $4.25 million to the family of a postal worker fatally shot by a co-worker. Once again, if the claim is allowed outside the workers' compensation context, the exposure to liability could be very significant.

Between the rock and a hard place. So, should employers comb through their workforce and get rid of those who may appear to present a threat? Should all applicants be asked about their mental health history? Not necessarily, because this could expose the employer to liability to the employee.

The Americans with Disabilities Act (ADA) does permit employers to exclude from the workplace employees who pose a "direct threat" to the safety of themselves or others, but a "direct threat" requires a "high probability of substantial harm." Under the ADA it is virtually impossible for an employer to inquire into an applicant's history of mental illness. What if, during the course of employment, the employer learns that an employee has a diagnosed psychiatric disorder? If the disorder qualifies as a "disability" (likely), then the employer has a duty to provide reasonable accommodation to permit the employee to work, and it probably will be necessary to have a meaningful dialogue with the employee relative to whether an accommodation can be made... yet if the employer allows the employee to remain at work and the employee engages in aggressive behavior which injures someone, the employer may be at risk of liability.

So what should the employer do? There are things an employer ought to do. In the fields of healthcare and night retail industries, OSHA has published guidelines and recommendations which are worth reviewing, even by employers not in those industries.

First and foremost, employers should adopt and publish to employees a "zero tolerance" policy toward aggressive or violent behavior at the workplace. This includes a safe complaint procedure for employees to report their concerns about potential or actual threats, intimidation or violence, without fear of reprisal. The procedure should protect confidentiality and should identify a designated official to receive such reports. The policy should be written and communicated to all employees and applicants.

Second, it is not enough to have the policy in place – it must be enforced across the board. Supervisors should be trained in handling situations. "Zero tolerance" should literally mean "zero tolerance." Even if an employee has a history of mental illness, and is therefore covered by the ADA, a uniformly applied zero tolerance policy means that his aggressive acts are not in any way protected.

As part of the workplace violence policy, Tennessee employers should consider specifically stating that the possession of weapons, including handguns, on company property is prohibited. This would include employees who are authorized by law to carry concealed weapons. Oddly enough, there is no specific prohibition against carrying such weapons on the workplace premises unless the employer specifically posts such a policy, as allowed by Tenn. Code Ann. 39-17-1315(b).

Supervisors and managers should also be trained to recognize various danger signals, including: when an employee has been fired or laid off; an employee who has made verbal threats; an employee who is under visible stress or has had changes in habits; an employee making bizarre remarks; an employee overreacting to situations; an employee with mood swings or depression; an employee suffering marital or family problems, or financial problems; an employee expressing anger, paranoia, or having difficulty accepting criticism.

If a situation or incident is reported, the employer should investigate, interview witnesses, informants and targets quickly, prepare thorough written reports, and take whatever actions are called for.

Many employers provide free Employee Assistance Programs (EAPs) as a benefit of employment, which allow troubled employees a means of discussing problems confidentially, as well as obtaining counseling. Such programs can help employees deal with stresses, alcohol, or drug problems.

Employers should conduct thorough pre-employment background investigations of prospective employees, particularly in certain situations, bearing in mind the limitations of the Fair Credit Reporting Act if a third party investigator is used. (See January, 2002 issue of this bulletin). At a minimum, follow up on job references, talk to former employers, and ask about any gaps in employment history. The interview process should be treated as critically important. The interviewer should use open-ended questions and be observant of "red flag" responses. One of the best ways to avoid workplace violence is to avoid hiring violent workers in the first place.

Finally, put some real thought into this potential problem, from a practical perspective. Analyze your workplace and identify particular areas of risk. Think about your reception area, parking lot, break room and locker room – how could they be made safer? Consider inviting a law enforcement officer to tour your facility and make suggestions. Arrange furniture to prevent employees from becoming trapped, and consider installing panic buttons. Make visitors sign in and out, require name tags, post security numbers by telephones, and keep doors locked after hours. Survey employees and get their input. Consider closed circuit cameras, keypad access to work areas, and security guards. Train employees on an evacuation plan, and train them to recognize and anticipate problems. Take precautions regarding money you collect and bank deposit procedures.

Avoid doing anything to antagonize a discharged employee. If you must terminate employment, allow the employee a brief opportunity to speak his mind. Schedule the discharge for the end of the day and do not allow the employee to go back into the workplace unescorted, but instead make arrangements for the return of his personal property or allow him to collect his effects under appropriate security.

Conclusion. Dealing with workplace violence is a blend of common sense, good planning, and commitment. Employers should recognize the potential problems of workplace violence and their obligations to do whatever possible to prevent it. The prudent employer can minimize his costs and losses, can avoid exposure to certain liabilities, and can provide the security of a safer workplace for employees.

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