Workplace violence is a significant problem in today’s businesses. Approximately 750 homicides occur in the workplace each year and more than 2 million Americans are victims of physical attacks at work annually. Along with the disruption to business activities there is a huge emotional toll on the victims and their families. In addition, the potential for liability on the part of the employer is increasing under a number of novel legal theories.
Protecting against workplace violence
Employer responsibility can be assessed under any or all of the following:
- Negligent hiring - The employer will be held liable if the victim can prove that the employer knew or should have known at the time of hiring that the employee was potentially dangerous or incapable of performing the job. Employers are more likely to be held responsible for the hiring of employees who have contact with the public.
- Negligent supervision and retention - This theory of liability is similar to negligent hiring, but is applicable when the victim can prove the employer knew or should have known that a current employee was potentially violent and failed to take appropriate disciplinary action.
- Prohibited harassment - An employee’s harassing conduct may result in liability to an employer, especially if that employer does not have an effective policy prohibiting harassment on the basis of protected characteristics.
- Negligent references - Employers must be aware of potential liability that may arise due to the actions of a violent employee. A violent employee could be considered disabled or handicapped under federal law. In such a scenario, employers must consider many issues, including whether the employee is qualified for his or her position, whether the employee is a direct threat under the ADA, whether accommodations are necessary or possible. In any event, employers should maintain the confidentiality of all medical records.
Guidelines on workplace violence
The Occupational Safety and Health Administration (TOSHA) has issued informational, voluntary guidelines on preventing violence in the workplace. These guidelines are targeted at the healthcare and social service industries. In issuing the guidelines for these industries, TOSHA observed that the workplace violence incident rate for private industry is three cases per 10,000 workers, whereas for healthcare and social service workers the incident rate is 47 cases per 10,000 workers. Although these guidelines are intended for healthcare and social service workers, TOSHA did announce that all employers have a general duty to provide their employees with a workplace free from recognized hazards. It is the position of TOSHA that employers can be cited for violating the law under the “general duty” clause if there is a recognized hazard of workplace violence in their establishments and they do nothing to prevent or abate it.
Employers in the healthcare and social service industries should obtain a copy of these guidelines and review them to see if changes need to be made in the workplace. Unfortunately, workplace violence is becoming a weekly incident in the United States when such incidents increase, the public brings pressure on the government for some type of response. If workplace violence occurs, TOSHA may take the position that the employer violated the law if it can show that appropriate steps were not taken to prevent or minimize the harm to employees.
Steps recommended by the guidelines
- management commitment and employee involvement in preventing violence: “To ensure an effective program, management and frontline employees must work together, perhaps through a team or committee approach.” If employers opt for this strategy, they must be careful to comply with the applicable provisions of the National Labor Relations Act (NLRA), which prohibits employee safety committees that “bargain” with management
- a written program for job safety and security, incorporated into the employer’s overall safety and health program
- a worksite analysis that involves a step-by-step, common-sense look at the workplace to find existing or potential hazards for workplace violence
- review of medical, safety, workers’ compensation and insurance records, including the TOSHA 200 log, to pinpoint instances of workplace violence
- monitoring trends and analyzing incidents in the workplace
- screening surveys. TOSHA recommends that employers give employees a questionnaire or survey to get their ideas on the potential for violent incidents and to identify or confirm the need for improved security measures
- workplace security analysis
- implementation of engineering controls, such as use of closed-circuit videos, placement of curved mirrors in desolate hallways, enclosing offices with safety doors and glass, etc.
- use of administrative and workplace practice controls
- development of a post-incident response and evaluation team
- training and education to ensure that all staff are aware of potential security hazards and how to protect themselves and their co-workers through established policies and procedures
- recordkeeping - good records help employers determine the severity of the problem, evaluate methods of hazard control and identify training needs
- regularly scheduled evaluations of safety and security measures by management.
Employer strategies for preventing workplace violence
- Require the employment application to be completed entirely, particularly with prior job history and explanation for periods of unemployment.
- Perform background and reference checks for all new hires. Require and check personal references.
- If specifically allowed by state law, prohibit employees from bringing firearms on to Company property by posting a notice to that effect. This prohibition is effective even if the employee has a valid license authorizing the carrying of the weapon.
- Secure the workplace. Identify high risk hours of operation or locations, such as retail businesses, employees working alone, late night and early morning shifts, urban crime areas and valuable equipment on site. Consider use of the following:
- lighting
- metal detection devices
- surveillance cameras
- barriers
- emergency or panic buttons
- drop safes
- cash handling procedures
- sign-in procedures limiting access.
- Enforce no solicitation/no distribution rules and prohibit off-duty employee presence in the workplace.
- Implement and enforce written workplace rules that provide “zero tolerance” for potentially violent conduct such as fighting, threats, physical contact, etc.
- Implement and enforce written policies prohibiting harassment of any kind.
- Train supervisors to identify potentially dangerous employees and to take appropriate steps to contain inappropriate or suspicious behavior.
- Consider implementing a policy banning all weapons from company premises. Consider a policy that allows the employer to conduct searches of employee lockers, containers or automobiles.
- Implement and enforce a drug testing policy.
- Implement and publicize grievance procedures for employees. Consider providing direct communication channels to upper management, allowing the employee to bypass his or her direct supervisor.
- Require supervisors to provide accurate job evaluations to all employees. Undeserved good performance reviews can contribute to violent outbreaks when adverse employment action finally occurs.
- Provide job counseling as soon as possible for employees who are terminated or laid off. Train supervisors to communicate any necessary layoffs or discharges without anger.
- Develop emergency plans to prepare supervisors to deal with violent situations if they should arise. Consider the best way to handle bomb threats, robberies, assault and other workplace violence before such incidents occur.