Dec 13th 2010
By Richard D. Alaniz
Last summer, in what police have called a domestic dispute, a man walked into an Old Navy store in the middle of downtown Chicago where his girlfriend worked. He pulled out a gun and shot her to death, then killed himself.
Not only did store managers have to deal with the emotional, public relations, and logistical fallout from the shooting, the family of the murdered employee soon filed a lawsuit against Old Navy. According to news reports, the lawsuit alleges that the shooting could have been prevented and that store management knew of threats against the employee and failed to act. The lawsuit also alleges that the store’s security measures were outdated because the boyfriend was able to enter the store through a private employee entrance and then gain access to a restricted employee area, where he allegedly committed the murder-suicide.
Sadly, this case is not unusual. According to the Bureau of Labor Statistics, 11,613 people were killed between 1992 and 2006 in incidences of workplace violence. On average, 1.7 million people are victims of violent crime while working or on duty in the United States every year, according to the Bureau of Justice Statistics.
The National Institute for Occupational Safety and Health (NIOSH) defines workplace violence as “any physical assault, threatening behavior, or verbal abuse occurring in the work setting.” The workplace can be any location “where an employee performs any work-related duty.” This includes buildings, parking lots, clients’ homes, and travel to and from work assignments.
Workplace violence risks are real and employers face legal liabilities when employees or customers are victims. Employers must understand how they could be vulnerable to a lawsuit after an incident of workplace violence, and what they can do to prevent such incidences.
Limits on workers’ compensation claims might help minimize the type of lawsuits that employees can file after workplace violence occurs, but there are many other areas where employers may be vulnerable to legal action brought by a distraught victim or a bereaved family member.
While the Occupational Safety and Health Administration has not outlined any specific standards for workplace violence, employers do have obligations under OSHA which may be relevant. Under the General Duty Clause of the Occupational Safety and Health Act of 1970, every employer “shall 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.”
In the case of workplace violence, an employer could be liable under OSHA if a victim or victim’s family can prove that the employer knew or should have known that violence could occur. Under OSHA, an employer may also be penalized if the U.S. Secretary of Labor establishes that the employer violated the General Duty Clause. In order to establish a violation, the Department of Labor must prove a hazard existed, the employer or its industry knew the hazard existed, the hazard was likely to cause death or serious bodily harm, and a feasible abatement method existed. In recent years, OSHA has applied the General Duty Clause in numerous other workplace injury cases where no specific standard was in effect.
Along with federal standards, different states and cities may have their own regulations regarding workplace safety, and employers must be in compliance with all relevant regulations wherever they operate or have employees.
Failure to exercise ordinary care
Employers also have a duty to exercise ordinary care. If workplace violence occurs, they may be sued for negligence if they knew or should have known of a potentially dangerous situation. Lawsuits could be based on negligent hiring, retention, training, or supervising of an employee who went on to commit violence at the workplace. Employers may also be sued for negligence if a customer or someone else made threats before carrying out violent acts, yet management failed to take any action.
Failing to create a safe environment
As the Old Navy case illustrates, employers can be held liable when non-employees can enter the workplace and commit violent acts.
Limiting workplace violence
Since workplace violence can take many different forms, it can be difficult to anticipate the many different vulnerabilities that employees face. According to a report issued by NIOSH and the Centers for Disease Control and Prevention, workplace violence incidents “arise out of a variety of circumstances: some involve criminals robbing taxicab drivers, convenience stores, or other retail operations; clients or patients attacking providers in health care or social service offices; disgruntled workers seeking revenge; or domestic abuse that spills over to the workplace . . ..”
The best approach to limiting lawsuits from workplace violence is to minimize the chances that employees, customers, and others will ever be at risk of a physical or verbal assault. When companies attempt to create a safe workplace for employees or customers, they probably consider slip-and-falls or other types of hidden dangers. But, employers first need to accept that violence is a real possibility which should be planned for. There are several key ways to plan for and prevent workplace violence.
Conduct background checks
Employers should conduct a background check whenever they hire new personnel, and this should include a report on any history of violence or threats.
Adopt a zero-tolerance policy
Employers should make it clear that any type of violence, verbal abuse, or harassment is completely unacceptable and such behavior will have disciplinary consequences, including termination. This zero-tolerance policy should be spelled out during employee orientation, in the employee handbook, and during ongoing training.
Companies should create a process for employees to report potentially dangerous people or situations, and managers and supervisors should be trained about how to respond to these concerns. Threats should be taken seriously and reported through the proper channels immediately.
With proper notice, employers have the right to monitor their employees’ work e-mail, phone calls, and other activities, and they should use that right when necessary. This is particularly true when there are indications that employees may be dangerous or become disgruntled.
Employers should also be prepared for the potential of a violent response to terminations and lay-offs. Unfortunately, there have been many cases of former employees returning to work with the intention of harming their one-time colleagues. In December 2009, a recently fired employee of a Louisiana construction company returned to the company’s offices, where he killed two women and wounded a third. The husband of one of the murdered workers later sued the company, claiming that it ignored threats the shooter made at the time he was fired.
When employees are fired, be sure that they surrender any keys, bar-code IDs, and other means of access to the workplace. Security personnel should have an updated list of former employees who are no longer allowed at the worksite. It’s also a good idea to change codes and PIN numbers periodically, so an ex-employee cannot sneak back in.
Use physical safeguards
Where feasible, employers should consider how they can physically safeguard the workplace. This can include security guards, surveillance equipment, and ID processes. At retail places, it may include extra-wide counters or bullet-proof glass. Employee entrances should be accessible only through key codes or PIN numbers.
Consult the experts
Since laws vary from state to state, employers should talk to their legal counsel to understand their potential risks and liabilities. When it comes to workplace violence, though, they should also consult those who specialize in the field. This can include security companies that assess threats and the physical safety of the workplace and suggest improvements. Domestic violence is another significant cause of workplace injuries, so employers should talk to those with specific expertise in this area who can suggest how to respond when workers are threatened by current or former spouses, boyfriends, or girlfriends.
Despite best-in-class programs to prevent dangerous attacks, workplace violence may still occur, and employers need to be prepared. Depending on the location, organizations may be able to develop a lock-down or evacuation process and ensure that employees are trained in what to do and where to go. Employers should also identify a crisis management team that can be immediately assembled in the event of an incident. The team should be prepared to deal with the concerns of every stakeholder, including employees, corporate management, shareholders, the public, and law enforcement as necessary.
Workplace violence can have a profound, disturbing effect on everyone who is impacted. Employers should take precautions to ensure that every employee and customer is safe, and because that is not always entirely possible, employers should also adopt practices that attempt to identify sources of violence and ultimately protect the company from the lawsuits that often follow workplace violence.
About the author:
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or [email protected].