Protecting the Workforce from Violence

by Snell & Wilmer
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Tragic acts of violence have taken over our headlines and can destroy not only lives, but businesses. With the rise in reported gun violence, the numerous recent tragedies around the country and continued economic troubles and job loss, employers need to be aware of what they can do and what they are required to do to identify and stop a violent employee in the workplace. Employers cannot turn a blind eye to frustrated or angry employees but must address them head-on.

Potential violent threats that employers need to watch out for may come from co-workers, vendors, supervisors or even customers or patients. According to the U.S. Bureau of Labor Statistics’ Census of Fatal Occupational Injuries, workplace assaults and violent acts claimed approximately 780 lives in the United States in 2011 and represented approximately 17 percent of the total 4,609 workplace fatalities in the United States. Homicides represented approximately 10 percent of these violent acts, claiming approximately 458 lives in 2011.

How can an employer be liable for the violent acts of its employees?

Employers are required to provide and maintain a healthy and safe work environment. The Occupational Safety and Health Act of 1970 (OSHA) requires that an employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Violations of OSHA may lead to hefty civil fines, criminal penalties and inspections.

In addition to potential OSHA violations, courts may hold employers liable for their employees’ violent and dangerous acts under negligence theories. These claims often arise in the form of negligent supervision, negligent retention or negligent hiring. The inquiry becomes, did an employer at the time of hiring an employee have reason to believe (or could it have determined by reasonable investigation) that an employee was dangerous and hired him or her anyway? With respect to negligent retention and supervision claims, the inquiry becomes, did an employer learn of an employee’s dangerous propensities after he or she was hired and not take appropriate action to prevent harm to others? In 2007, a workplace shooting in Virginia left three employees dead and resulted in a $3.1 million verdict against the employer on a negligent retention claim based on the employer’s failure to protect its employees from a co-worker whose behavior had become increasingly erratic. In December 2012, the California Court of Appeal affirmed a $125,000 verdict for an employee and $550,000 attorney’s fees award on the employee’s claim of negligent hiring and supervision where a previous employee had complained of similar sexual conduct and assault by the same supervisor and nothing had been done about it.

Courts may also hold employers liable for violent and dangerous acts of employees under the common law theories including the doctrine of respondeat superior where an employee’s actions are committed when acting in the course and scope of his or her employment. While an employer will argue that violent acts should fall outside the scope and course of an employee’s duties, a judge or jury might find extenuating circumstances or ignored warning signs to justify imposing liability on the employer.

What can be done?

Pre-Employment Screening

Pre-employment screening by way of a criminal background check can provide an employer a defense against potential workplace violence and claims of negligent hiring. Such a check may reveal that an employee has a violent history or violent tendencies before they are ever brought into the workplace. However, the EEOC has recently been cracking down on criminal background checks believing they result in discriminatory hiring practices, so employers need to be careful and focus background checks based on the nature and gravity of the offense(s), the closeness in time to the application and the nature of the job being sought. Criminal background checks are also limited under the Fair Credit and Reporting Act to a period of seven years from the date of application. Pre-employment drug testing should be considered as illegal drug use may be an indicator for potential violence.

Before undertaking any of these approaches, employers should inquire as to whether there are any state limitations to seeking or using pre-employment screening approaches. Some states, like Massachusetts, bar employers from requesting criminal offender records information in the initial employment application. In addition, there are some state limits to the length of time for which an employer can request such information as well as what types of convictions an employer can inquire about. For example, in California, employers are prohibited from asking job applicants to disclose information about arrests or detentions that did not result in a conviction or that resulted in a referral to a participation in a pre- or post-trial diversion program. Employers are prohibited from seeking such information from any source and from using such information as a factor in determining whether to hire someone. In addition, in California, employers cannot ask applicants about certain marijuana-related convictions if the convictions are more than two years old.

Workplace Violence Policy and Enforcement of the Policy

Employers should consider establishing and distributing a workplace violence policy. Specifically, the policy would set forth the employer’s commitment to a safe work environment and its prohibitions against any violence, threats of violence or bullying. Employers should also consider implementing a zero tolerance policy and then follow through with this policy. While an employer may be concerned about such zero tolerance policy running afoul of the Americans with Disability Act (ADA), and similar state statutes, disabled employees can be terminated for misconduct even if the misconduct was caused by a disability so long as the policy for which they are terminated applies across the board. Thus, a disabled employee can be terminated for violence or threats of violence. As courts have held, the ADA does not require an employer to retain a potentially violent employee.

Workplace violence policies should have a clearly communicated procedure for reporting acts of violence or threats of violence. Employers can consider implementing an anonymous hotline that employees can call to report workplace misconduct including threats of violence. If an employer receives any complaints of suspected violence, threats of violence, or actual violence, it should immediately investigate and act upon such complaints. To protect the workforce from potential violence, the employer may want to consider suspending the subject of the complaint with pay pending the results of the investigation.

Employee Assistance Programs

An employer may also want to consider implementing an Employee Assistance Program. Such a program would establish a confidential support service with trained counselors who are enabled with the proper resources to work through workplace violence issues. Counselors could be used both to give employees access to professionals available to discuss problems that can be adversely affecting their job performance and conduct as well as to assess whether situations are serious enough that they need to be brought to the attention of management. The program should also include referrals and a follow-up process. Implementing an Employee Assistance Program and encouraging employees to seek help with problems they may be experiencing through this program can help in providing a safe work environment.

Restraining Orders

In some states, an employer can seek a restraining order on behalf of an employee who needs protection from unlawful violence or credible threats of violence. The court can order a person not to harass or threaten the employee, not to contact or go near the employee and not to possess a gun. In California, for an employer to get a workplace violence restraining order, there must be reasonable proof that an employee has suffered unlawful violence or a credible threat of violence that either occurred or could occur in the workplace. In Arizona, an employer can seek an “Injunction Against Workplace Harassment;” in Colorado, a court may issue a civil restraining order in the name of the business for the protection of the employees upon a finding that “an imminent danger exists to the employees of a business entity;” and in Nevada, an employer may apply for a temporary order for protection and, if successful, an extended order for protection against harassment in the workplace.

Conclusion

Employers need to be aware of their duty to maintain a safe work environment and should consider steps it can take to be proactive in preventing workplace violence including implementing pre-employment screening procedures and workplace violence policies that are communicated to the workforce, and have accessible steps that employees can utilize to report threats and concerns in the workplace.

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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