Employers must balance reasonable efforts to prevent violence and manage violence-related incidents with obligations under anti-discrimination and privacy laws. Failure to make reasonable efforts to prevent and manage violence may expose employers to liability under negligent hiring and retention laws or the Occupational Safety and Health Act (OSH Act) general duty clause. By the same token, ill-conceived and implemented efforts can violate the anti-discrimination laws or constitute unlawful invasions of privacy.
The rise in workplace violence has led some courts to expand the employer’s duty to provide a safe work environment by imposing upon the employer a duty to inquire about whether the applicant would be a safe and suitable employee. The extent of the duty depends upon the position sought – a position involving safety-sensitive duties or contact with the public may impose a greater duty. In many cases, failure to make reasonable inquiries may expose the employer to liability for negligent hiring.
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