Workplace violence is a significant problem in today’s businesses. According to the Bureau of Labor Statistics, workplace homicides reached a peak of 500 cases in 2016, which was the highest homicide figure since 2010. Many more individuals will fall victim to non-fatal physical attacks at work. In fact, the Occupational Safety and Health Administration (OSHA) reports that nearly two million American workers report having been victims of workplace violence each year. Along with the disruption to business activities, victims and their families experience a significant emotional toll. Additionally, the potential for employer liability is increasing under a number of novel legal theories.
Employer responsibility for violence in the workplace is generally assessed under the following theories:
- Negligent hiring - An employer may be liable under this theory 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 likely to pose a risk to co-workers. Employers are more likely to be held responsible for the hiring of employees who have contact with the public or co-workers and who have demonstrated past conduct that would suggest that they could pose a risk of harm to those with whom they interact as part of their jobs.
- Negligent supervision and retention - This theory of liability is similar to negligent hiring but is applicable when the victim can prove that the employer knew or should have known that a current employee was potentially violent and failed to take appropriate disciplinary action or failed to otherwise protect the employee from a foreseeable harm. (See Workplace investigations, Defend claims relating to negligent retention.)
- Workers’ compensation - Under the workers’ compensation system in Illinois, a victim/employee or family member generally cannot sue the employer for on-the-job injuries because workers’ compensation benefits are the exclusive remedy for employee injuries. However, employees or their families can sue if the victim can prove that the employer knew that a workplace situation was virtually certain to result in serious bodily injury or death.
- 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 or fails to take appropriate action to stop harassment reported by the employee or was otherwise known to the employer. (See Discrimination.)
- Negligent references - Employers could face liability for providing a false, positive employment reference on an employee whom the employer knows poses a danger or risk. An organization relying on such a reference might allege negligent referral or negligent failure to warn if a former employee harms someone at its organization. Illinois law protects employers who report truthful information regarding an employee as part of job reference. Illinois employers are immune from civil liability for providing truthful information to a prospective employer about a former employee, unless it is shown by clear and convincing evidence that the information provided is knowingly false or violate any civil right of the former employee. It is important to note that the immunity provided by Illinois law is an affirmative defense, and would not prevent a claim from being brought both by a prospective employer or a former employee. As a result, most employers chose to establish policies limiting the type of information they provide on reference requests.
- Americans with Disabilities Act - Employers must be aware that, while acts of violence are not something that employers are required to accommodate, employees exhibiting signs might be considered "disabled" or "handicapped" under the Americans with Disabilities Act (ADA) or Illinois 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 these circumstances, employers should seek the assistance of counsel, and should be sure to maintain the confidentiality of all medical records.
Firearms in the workplace
On July 9, 2013, the Illinois Firearm Concealed Carry Act took effect. The act requires employers, who are not exempt, to allow employees who have a permit to keep a firearm secured in a locked vehicle parked on company property. The law exempts:
- pre-school or childcare facilities
- establishments that serve alcohol on the premises
- gaming facilities
- any building or property that has been issued a Special Event Retailer’s license
- any building or property under the control of a college or university
- any stadium or arena that holds college or professional sporting events.
If any employer owns or operates property that meets the definition of a prohibited area as listed abov,e it is mandatory that the employer clearly and conspicuously posts a sign at the entrance stating the carrying of firearms is prohibited.
Even if an employer’s premises do not qualify as prohibited area, an employer may elect to prohibit the carrying of firearms on its premises. If an employer chooses to do so, it must post a sign stating the carrying of firearms is prohibited. Employers should also consider implementing a written policy clearly stating the carrying of firearms is prohibited.
The law does not permit the exhibition of a firearm for any purpose other than lawful self-defense. The law also does not require that employers permit firearms to be brought into any building, structure or facility, as the law provides employees with the limited right to store firearms locked in vehicles while parked on company property. The law applies only to an employee’s personal vehicle and employers may still ban guns in any company-owned or leased vehicles.
Occupational Safety and Health Act
The Occupational Safety and Health Administration (OSHA) 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, OSHA 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, OSHA 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 OSHA 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 fix it. These guidelines are available at:
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. As such incidents increase, the public may bring pressure on the government for some type of response. If workplace violence occurs, OSHA 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 is critical 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, which prohibits employee safety committees that “bargain” with management.
- A written program for job safety and security should be incorporated into the employer’s overall safety and health program. Consult the OSHA website for a wealth of information on how to develop and maintain a written safety and health program at:
- Management should conduct a worksite analysis that involves a step-by-step, common-sense look at the workplace to find existing or potential hazards against workplace violence. Employee involvement in the analysis is recommended to “minimize oversights, ensure a quality analysis and get workers to ‘buy in’ to the solutions.” See OSHA’s online Job Hazard Analysis booklet at:
- for comprehensive guidance on how to conduct such an analysis.
- Review medical, safety, workers’ compensation and insurance records, including the OSHA 300 log, to pinpoint instances of workplace violence.
- Monitor trends and analyze incidents in the workplace by reviewing accident reports in the OSHA 300 log to identify any reoccurring hazards or injuries.
- Conduct screening surveys. OSHA 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.
- Perform workplace security analysis.
- Implement 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 administrative and workplace practice controls, such as requiring all employees to report assaults or threats to a manager organizing an emergency response team and establishing liaisons with enforcement.
- Develop a post-incident response and evaluation team.
- Conduct training and education to ensure that all members of staff are aware of potential security hazards and how to protect themselves and their co-workers through established policies and procedures.
- Ensure diligent recordkeeping. Good records help employers determine the severity of the problem, evaluate methods of hazard control and identify training needs.
- Management should conduct regularly scheduled evaluations of safety and security.
OSHA (as well as certain other federal agencies) has also issued other material and guidelines in an effort to assist employer with implementing safety programs focused on certain risky occupations or vulnerable classes of employees. These materials can be found at:
Preventing workplace violence
- Require the employment application to be completed entirely, particularly with regard to criminal record (convictions only), prior job history and providing an explanation for periods of unemployment.
- Perform appropriate background and reference checks (see Reference checks on page 73) for new hires. Request and check personal references.
- 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:
- metal detection devices
- surveillance cameras
- emergency or panic buttons
- drop safes
- cash handling procedures
- sign-in procedures limiting access.
- Enforce no solicitation/no distribution rules for non-employees 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 situations and to take appropriate steps to contain inappropriate or suspicious behavior.
- Consider implementing a policy banning all weapons from company premises except to the extent allowed by law. Consider a policy that allows the employer to conduct searches of employee lockers and/or containers but remember that searching employees’ vehicles for firearms is prohibited. You must comply with the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 as previously discussed.
- 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, assaults and other workplace violence before such incidents occur.
- Develop an Employee Assistance Program that employees may use or be referred to for issues (e.g., psychological, relationship, substance abuse) that may be affecting their job performance or warning signs of unstable behavior.
- Take advantage of local enforcement training programs designed for Employees on how to respond to an “Active Shooter” on company property.
It is vital that employers consistently enforce any policies implemented to avoid or otherwise minimize the risk of violence in the workplace.