Workplace violence is a significant problem in businesses today. Hundreds of homicides and thousands of physical attacks occur each year as a result of workplace violence. Along with the disruption to business activities, these events exact 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 several novel legal theories.
Employer responsibility can be assessed under any or all of the following:
The employer may 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. Employers are more likely to be held responsible for the negligent hiring of employees who have contact with the public.
The theories of negligent supervision and retention are similar to negligent hiring, but are applicable when the victim proves the employer knew or should have known, that a current employee was potentially violent and failed to take appropriate remedial action.
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.
A growing trend among the victims of crime and plaintiffs’ attorneys is to look for parties who can be blamed for all or a portion of the injuries that a person received as a victim of a criminal act. People oftentimes place blame upon the employer of the person who committed a crime in the event the act or occurrence occurs in the performance of the employee’s job duties. Placing blame upon the criminal’s employer satisfies the need to find the proverbial “deep pockets” to compensate the crime victim. The person who actually committed the crime, of course, does not normally have adequate financial resources to compensate the victim for injuries, nor would there be insurance coverage for the perpetrator; however, the perpetrator’s employer will often have financial resources and/or insurance coverage from which the victim might obtain compensation.
Although the employer should generally not be responsible for criminal acts by its employees if those acts were not committed within the course and scope of the worker’s duties, crime victims will sometimes allege that the employer’s failure to exercise due care with respect to the employee caused or contributed to the employee’s opportunity to commit the criminal act. The most common of such claims is that the employer was negligent in hiring an employee who was ill-suited for the job because of the employee’s tendency to commit a crime. In cases in which there was nothing about the employee’s background that the employer might have been able to learn at the time of hiring, victims of crime will bring claims for negligent supervision or negligent retention, alleging that the employer should have fired the employee or taken other precautions that would have prevented the employee from having the opportunity to commit the crime.
Negligence claims against employers by victims of crime pose serious risks for employers. Juries are sympathetic to crime victims. Juries will sometimes stretch the facts of a case to find that an employer should have foreseen that its employee might commit a crime and that the employer is therefore responsible to compensate the victim. Furthermore, the outcome of jury verdicts in this area are less predictable than more common negligence claims, which typically arise out of accidents rather than criminal conduct.
Employers may be liable for work-related violent acts committed by their employees if the employees were acting within the scope of their employment at the time of the violent incident.
The best protection an employer can avail itself to and offer to employees is to offer is to establish a zero-tolerance policy toward workplace violence against or by their employees. The employer should establish a workplace violence prevention program or incorporate the information into an existing accident prevention program, employee handbook or manual of standard operating procedures. It is critical to ensure that all employees know the policy and understand that all claims of workplace violence will be investigated and remedied promptly. It is also critical that employers enforce such policies on a consistent basis.
The Occupational Safety and Health Administration (OSHA) has issued recommendations for preventing violence in the workplace. Although there are no workplace violence regulations, OSHA contends that all employers have a general duty to provide their employees with a workplace free from recognized hazards. It is their position 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.
Unfortunately, workplace violence incidents in the United States are occurring more frequently. When such incidents increase, the public brings pressure on the government for some type of response. If workplace violence occurs, the agency 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.
To ensure an effective program, management and front-line 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. Such committees should:
Employers should consider implementing the following strategies to prevent incidents of violence in the workplace: