Volume 39, Issue 2, February  2004

LegalEase

Keeping Your Workers Safe
   Legal Tips to Deal with Workplace Violence

by
David Barron

In Irvine, Calif., an Albertson’s employee killed two coworkers with a samurai sword. In turn, the perpetrator was shot and killed by police. In Sacramento, Calif., a security guard from Burns Security was suspended for vandalizing his girlfriend’s car. Disgruntled, he threatened and then shot three co-workers (including his girlfriend). In Wakefield, Mass., a technology employee, upset over an ensuing wage garnishment, opened fire on coworkers and killed seven employees, including the human resources director. These examples bring workplace violence statistics vividly to life. Surprisingly, homicide is now the third-leading cause of fatalities in the workplace (second for females), and workplace violence is estimated to cost U.S. businesses as much as $4.2 billion annually. 

What is most disturbing about workplace violence statistics is the dramatic increase in recent years. To understand this phenomenon, you only have to look at where most employees are coming from—the schools. When most of you reading this article were in school, it was unthinkable to assault a teacher or even to talk back. Times have changed. Now, most schools are marred by violence and a lack of discipline. Those who are products of this system lack the basic problem-solving skills that allow the successful resolution of disputes in the workplace. This is especially apparent in lower-paying jobs with high turnover, such as many in the grocery industry. Like it or not, employers will increasingly bear the burden of playing counselor, parent and police officer to employees. This reality raises a number of practical and legal issues that are discussed below.

Domestic Violence
A female employee comes to one of your managers and says she has a restraining order against her ex-husband. She tells you that he assaulted her at her previous job and she expects your business to ensure that he is not allowed on the premises. What do you do? What if the husband gets in? Can you terminate the employee because of the risk her husband may pose to other workers? These are all questions that should be thought out and placed into written policies. Most companies, however, deal with these issues on an ad hoc basis and hope for the best; however, this shortsightedness can be costly.

First, any policy should make it clear that the employer is not the police. Professionals should handle all criminal matters. That said, you have to weigh whether you want to know about a violent spouse so that you can take security precautions or if you are better off not having that information. For liability purposes, the latter option is clearly the best. You do not have any legal duty to prevent against unknown and unforeseeable risks. Moreover, once you are told that an employee has a domestic abuse problem, that employee may be protected from retaliation. For example, in Illinois an employer may not discriminate against an employee “who is or is perceived to be a victim of domestic violence” or who disrupts the workplace with acts of domestic violence. Victims can also take up to 12 weeks of unpaid, protected leave to deal with domestic violence issues. Accordingly, it is advisable that all managers be trained to seek assistance when dealing with these matters because of the potential liability involved.

Second, with regard to enforcing restraining orders, it is important to note that your employees are not the police. Violating a restraining order is a crime that should be reported. Managers should be trained that it is not appropriate to take matters into their own hands and risk violence against them or other co-workers. The burden should be left squarely with the employee to inform management if the restraining order is violated, or suspected of being violated, so that appropriate steps can be taken. 

Workers Compensation Coverage
Depending on the circumstances, most states allow workers’ compensation coverage for workplace violence injuries. For example, many states do not allow for an employee who is under the influence of illegal drugs or alcohol to recover benefits. An injury that is caused because of a personal dispute between the victim and the assailant may also not be covered. Typically, the injury must be related to employment in some way. For example, a night cashier who is injured in a robbery would likely receive benefits because the violence was attendant to the risks associated with working at night. A cashier who is assaulted because of his connection with a drug deal outside of work likely would not receive benefits.

Although state workers’ compensation laws provide exclusive benefits to employees in most cases, it is possible that employees may sue for additional remedies. For example, if the injuries are caused by the employer’s gross negligence, many states allow the employee to file a lawsuit for compensatory and punitive damages. This is admittedly a high standard to meet, but there are ample experts on workplace violence who routinely testify that incidents were foreseeable and that employers were woefully inadequate in taking preventative measures. Hindsight can also prove damaging to an employer, because there are often warning signs that are not recognized or even ignored.

Negligent Hiring and Retention
The most common claim brought against an employer as a result of a workplace violence incident is negligent hiring and retention. Under the law, an employer has a legal duty to exercise reasonable care to not hire or retain employees who are violent or who pose a risk of harm to others. These types of claims can be brought by employees, customers, vendors or anyone affected by an incident of workplace violence. The perplexing thing about these claims is that, almost by definition, the employer did not do enough to prevent a tragedy. The only real issue is whether a reasonable employer would have done something more; in most cases, there will be experts lining up to testify that there was a list of things that should have been done differently. 

Effective Policies
To determine if your company is doing everything it should to avoid liability in this area, the first place to look is the hiring process. Every company does some sort of background investigation. Whether it is merely asking questions on an application or reviewing an applicant’s criminal record, this is a critical step in preventing workplace violence. It is difficult to defend an employer who has hired a convicted felon or someone with a history of violence. Technology has made background checks cheap and fast; today’s juries do not look kindly on the argument that these basic steps are too expensive. 

More importantly, be consistent. It is better not to do background checks at all than to have a policy requiring an investigation and to make an exception because it was the busy season. Not following established policies and procedures is almost, by definition, negligent and can prove costly if a suit is brought. In addition, supervisor training is critical. Persons entrusted with hiring responsibilities should be trained on appropriate interview questions, and the warning signs of a potentially violent employee. The interview stage is the best and least costly step to avoid a workplace-violence incident. 

Lastly, check references. Most employers will now only give “name, rank and serial number” in response to a request. The only way to get around this is to have all applicants sign a release of both your company and those who provide information in the reference process. A past employer will feel more at ease in talking to you if there is little chance of being sued for what is said. 

Workplace violence cannot be avoided completely. That said, there are a number of prudent steps that can and should be taken. Some suggested practical steps include the following:

• Implement a comprehensive policy addressing violence in the workplace and train employees and supervisors on     what to do if a problem arises. To cut costs on training, combine violence training with sexual harassment classes    because many of the issues overlap;
• Have a plan in place for dealing with the problem termination. Do not create a confrontation at a time and place      that could lead to violence; and
• Use an Employee Assistance Program (EAP) to preempt violent behavior early. Although legal advice should be sought in this area, EAP attendance in conjunction with disciplinary action can sometimes be an effective tool.

Workplace violence is the sexual harassment of the new century. Twenty years ago, most companies did not have a policy on sexual harassment and thought little of the importance of dealing with those issues in the workplace. Now, society has changed and it is well accepted that employers must police sexual harassment in the workplace or face significant liability. Society has changed again—and employers will be charged with bringing order to a workplace populated by a generation of workers who have experienced school shootings, violent music lyrics and violence at home before stepping foot on the job. This is a tall task indeed for most employers, but one that can be managed with effective policies, trained supervision and careful screening practices. 


USG

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