Alliance for Children and Families, January 15, 2011
Workplace violence is not as unpredictable as we once thought. Look for warning signs, use best practices to minimize risk.
Workplace Violence: Not as Unpredictable as Once Thought
Warning signs, best practices to minimize risk
When a Florida man opened fire at a school board meeting in December 2010, it made top headlines from coast to coast. But isolated, high-profile incidents such as this fail to alert us to the true prevalence of violence in the workplace.
The U.S. Bureau of Justice Statistics reports 1.7 million incidents of violent crime in the workplace from 1993 to 1999 and nearly 20 percent of these were aggravated attacks. The numbers demonstrate that this is a more serious problem than most realize.
There is a myth that the person who brings violence to the workplace simply “snaps” without warning. In fact, in most cases, there are warning signs. Conduct that foreshadows an episode of workplace may include:
• intimidating, bullying, belligerent, or other aggressive behavior;
• direct or veiled threats of harm;
• statements showing fascination with workplace violence;
• statements indicating desperation over personal problems;
• discussion of “fixing things” or “exit plans”;
• frequent absences coupled with a suspicion of substance abuse or domestic violence; and
• extreme change in normal behaviors, including mood swings and paranoid behavior.
Potential for Liability
Employers face liability for acts of workplace violence under the general duty clause of the Occupational Safety and Health Act (OSHA). This provision states that an employer is to “furnish each of his [sic] 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 employees”1
Most states also have laws that, like OSHA, require safe workplaces.
When an employee is injured as the result of workplace violence, state workers’ compensation statutes typically provide a remedy to employees. On the other hand, they generally shield employers from additional liability if the injury arises in the course and scope of employment.2
Yet, some courts have held that workers’ compensation statutes do not cover willful or malicious acts and have allowed victims of workplace violence to directly sue the employer for damages.3 A few other courts have decided that violent acts motivated by personal animosity against the injured employee are not covered by workers’ compensation because these incidents do not arise in the course and scope of employment.4
If workers’ compensation does not limit an injured employee’s right to recover damages, you, as the employer, may be liable under common law theories of respondeat superior and negligence. This legal doctrine provides that the employer is liable for employees’ actions if those acts were committed within the scope or course of employment. The determination of scope or course of employment generally depends upon the particular facts in each case.5
Best Practices to Minimize Risk
You can take steps to prevent the likelihood of violence with these generally accepted best practices:
• Pre-Employment Screening. Conduct effective pre-employment screening with every employee. Run background checks and actually check employee-provided references. If a reference refuses to give more than basic information about the person, ask the applicant for another. It’s his or her duty to provide viable references; you should not have to wonder why their reference is not talking.
• Employee Assistance Program (EAP). Consider the value of providing an EAP as a preventive measure. An EAP can help intervene when matters appear dicey and help diffuse hostile situations. In worst case scenarios, an EAP can provide crisis assistance and grief counseling.
• Zero Tolerance of Harassment. Refer to my column in Issue 4 – 2009 of the Alliance for Children & Families Magazine for policies and procedures that can deter behaviors that might lead to workplace violence. Require employees to report any threatening, harassing, or bullying conduct at the earliest time possible, and protect whistleblowers from retaliation.
• Respectful Terminations and Discipline. Because humiliation is a factor that runs through many workplace violence scenarios, be sure that employee discipline and terminations are carried out in a respectful manner. The maxim “praise in public and punish in private” is worth remembering.
• Pre-Plan Early Interventions. Train and inform supervisors and key employees about the warning signs, how to assess threats, reporting procedures, and phone numbers of external resources such as private security resources and law enforcement. As a final precaution, be sure to establish escape routes and communicate them to all employees.
• Pre-Plan Emergency Response. Identify a crisis management team, establish communication channels, determine who will manage public relations, and assign responsibilities in the event of a crisis.
• Use Technology. Visitor and employee identification badges, tags, or cards are low-tech ways of identifying those who have permission to be at the workplace. If you have particularly vulnerable sites, it may be important to have them accessible only with electronic passcodes or passkeys.
• Ban Weapons. Most employee behavior codes ban the introduction of weapons into the workplace. If your state permits the carrying of concealed weapons, or allows employees to keep weapons in their cars, be sure you understand your rights to set limits.
1. See the Occupational Safety and Health Act, Section 5(a)(1).
2. See Dekalb Collision Center, Inc., v. Foster, 562 S.E.2d 740 (Ga. App.), cert. denied, 2002 Ga. LEXIS 823 (Ga. 2002), in which the state workers’ compensation statute barred a negligence suit against the employer of an employee killed when he tried to stop a workplace fight because his death arose out of and in the course of employment.
3. See Blailock v. O’Bannon, 795 So.2d 533 (Miss. 2001), in which a retail clerk assaulted by her manager was allowed to sue her employer for damages. The state workers’ compensation statute applied only to injuries from negligence or gross negligence and did not cover injuries caused by the willful or intentional acts of another employee acting on the employer’s behalf.
4. See Panpat v. Owens-Brockway Glass Container, Inc., 49 P. 3d 773 (Ore. 2002), on remand, 71 P. 3d 553 (Ore. App. 2003), in which the estate of an employee killed by her co-worker after she ended their romance was allowed to sue her employer for negligence because the motivation for the assault was unique to the romantic relationship and not a workplace event.
5. For example, in Clark v. Pangan, 998 P.2d 268 (Utah 2000), the court said a three-part test should apply to determine whether an alleged assault and battery of one employee by another was committed within the scope of employment. The conduct must (1) be of the general kind the employee is employed to perform, (2) occur within the hours of work and ordinary spatial boundaries of the employment, and (3) be motivated, at least in part, by the purpose of serving the employer’s interest.