It’s All "Just Paperwork" Until Somebody Gets Hurt: Be Proactive in Preventing Workplace Violence

by Foley & Lardner LLP
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“Help, there is an angry man waving a gun around in the lobby!” These are the kinds of words no employer wants to hear and can make all other concerns seem trivial in comparison. Sadly, the statistics confirm what we regularly see on the cable news networks – workplace violence is one of the most common causes of on-the-job injuries. For example, the last time OSHA conducted a broad survey on the issue, more than half of all large employers reported at least one incident of violence over the prior year. Likewise, a 2012 Department of Labor survey demonstrated that 17% of all workplace fatalities are the result of violence.

In addition to the purely humanitarian concerns for preventing workplace violence, employers face potentially significant liability when acts of workplace violence occur. Section 5(a) of the Occupational Safety And Health Act, also known as the General Duty Clause, obligates every employer to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. In the event of violence in the workplace, OSHA or similar state agencies may rely on the General Duty Clause to cite an employer, claiming there was a recognized hazard of violence in the workplace and the employer did nothing to prevent or abate it.

Because no employer is immune from workplace violence, employers should consider doing some advance preparation and training to be prepared if and when trouble strikes.

Know the Warning Signs

Employers can minimize the prospect of workplace violence if coworkers and managers identify, acknowledge, and respond appropriately to behavior that may be a precursor to physical conflicts, such as:

  • Direct or implied verbal threats expressed by an employee about coworkers, management, customers, or family members
  • Expression of extreme fascination with weapons
  • Paranoid or other unusual behavior
  • Extreme adverse reaction to coaching, discipline, or constructive criticism
  • Manifestation of extreme depression, delusional behavior, and/or suicidal inclination
  • History of violent behavior
  • Romantic or other obsession with or stalking of an employee by a co-worker, spouse or other non-employee

Assess Your Workplace

In light of these risks, every employer should analyze its own workplace, regardless of its size or industry, to determine what potential problems exist and what it can do to be prepared in the event of trouble. To achieve these goals, a “Threat Assessment Team” should be developed to coordinate the work site analysis and to study any past incidents that have occurred in both the employer’s business and similar businesses in the community. That team should also work to identify particular hazards, conditions and operational situations that could lead to violence in the particularized workplace. An effective program may require the installation and proper maintenance of video monitoring, access control devices and the use of dedicated communication devices such as private channel radios, cellular phones, and other communication that can help manage any crisis.

Employers should proactively train all of their employees about policies pertaining to zero tolerance for workplace violence, reporting mechanisms, available resources, and the role each employee plays in keeping the workplace safe.

Implement Violence Prevention Policies

Employers should consider creating and publicizing the following policies and procedures aimed at violence prevention:

  • Zero tolerance for violence or bullying
  • Specify behaviors that are prohibited in the workplace
  • Identify each employee’s obligation to report situations of and actual or perceived instances of workplace violence
  • In the event of an incident, consider how to respond to employees, employee family members, customers, clients, and others who will be impacted
  • Develop techniques for dealing with potentially violent situations

The specifics of how this is done must be within the context of each employer’s industry, facility layout and particular risk associated with each workplace. Knowing how to respond to incidents of violence when they occur is also an integral part of any effective violence prevention program. All employees should be trained on the concept of universal precautions for violence – that is, that violence should be expected but can be avoided or mitigated through proper preparation.

Beware of Other Legal Issues

While preventing violence is paramount, make sure that your measures are in accord with your other employment law obligations. For example, analyze any privacy concerns that may arise with respect to audio or video monitoring. Similarly, consider the fact that some potentially violent employees may be suffering from an ADA-protected condition. Recall also that the National Labor Relations Board appears to be on a mission to protect even potentially aggressive employee behavior in the workplace, so consulting with sophisticated counsel is always a smart idea.

No employer can absolutely ensure that its workplace will never be the site of a violence incident. However, employers who take proactive steps to reduce the risk will be able to minimize their exposure and respond quickly and appropriately when incidents do occur.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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