Search

Search form

Preventing Violence and Disruption at Work

Preventing Violence and Disruption at Work
  • September 28, 2001

Introduction

The recent attacks on the World Trade Center in New York City and the Pentagon near Washington, D.C. were, among other things, attacks on employees at work. While it is hard to imagine a repetition of workplace events of this magnitude, the probability of violent incidents at work resulting in death or serious injury to employees has risen dramatically in the past decade --- some reports prior to the events of September 2001 had put the increase as high as 300%. According to the federal government's National Institute for Occupational Safety and Health (NIOSH), homicide ranks as the leading cause of occupational death among women, and among all U.S. workers, homicide is the second leading cause of workplace death.

Employers have a legal obligation to provide a workplace that is reasonably free from hazards, and they also have the obligation to take reasonable steps to insure the individuals they employ and do business with will not cause intentional harm to other employees. These duties are contained in a variety of federal and state safe workplace laws, as well as common law negligence standards.

Employer Obligations to Maintain A Safe Workplace

OSHA

Pursuant to the "General Duty Clause" of the federal Occupational Safety and Health Act, employers have a responsibility to safeguard employees from recognized hazards which may cause serious physical harm or death. Under this clause, OSHA has issued citations to employers for exposing their employees to workplace violence. OSHA has published guidelines for preventing workplace violence at health care facilities and retail establishments, among others, indicating the agency's intention to continue to cite employers for workplace violence exposures under the Act's General Duty Clause.

Potential Liability for the Harmful Acts of Employees to Others

OSHA is not the only law that requires employers to guard against workplace violence. Under the "common law" doctrine of negligent hiring or negligent retention, employers must protect workers from individuals who have demonstrated a propensity to behave violently towards others.

An employer owes a duty of care to those with whom its employees forseeably interact as a consequence of their employment. This duty imposes an obligation on employers to hire and retain only safe and competent employees. Breach of this duty can give rise to a cause of action for negligent hiring or retention. A cause of action for negligent hiring or retention may be found when an employer:

  1. hires or retains an "incompetent" employee;
  2. knows or should have known the employee was unfit to perform the job;
  3. acts in a negligent manner (failure to act may also be negligent).

The injury to the plaintiff must have been foreseeable, and it must have been proximately caused by the employer's negligence.

To succeed in proving an employer liable for the harmful acts of an employee it has hired, a plaintiff must prove that the employee was unfit to perform the job for which he or she was hired or retained by showing a lack of credentials to perform the work, or conduct establishing incompetence or unsuitability.

The plaintiff also must prove that the employer had actual knowledge or would have known of an employee's incompetence had it made a reasonable inquiry into the employee's background. In fact, an employer has a duty to make a reasonable inquiry based on the nature of the position, the risk posed by a person in that position to others, and the harm to others if that risk becomes reality.

An employer may have a duty to investigate based on the background of the individual to be hired or retained. Negligent hiring/retention cases commonly involve employees with criminal records, and employers must consider whether to conduct a criminal record check and what the consequences are of failing to make inquiries or conduct an investigation.

Assuming an employer knew or should have known an employee was unfit to perform the job, the plaintiff must prove: 1) a reasonably prudent person knowing such information would not have hired/retained the individual; or, 2) a reasonable employer would have taken other appropriate measures to minimize the risk posed by the employee.

The plaintiff also must prove that a person of ordinary care could have foreseen plaintiff's injury as a consequence of the employee's incompetence. In other words, should the employer have anticipated the harm. Additionally, when looking at the facts after the event, was the injury, in fact, caused by the defendant's negligence.

Preventing A Negligent Hiring/Retention Claim

What can employers do to protect their employees and themselves from workplace violence? How can employers shield themselves from negligence suits brought by third parties who have been injured by violent employees?

Proof the employer knew or should have known its employee was incompetent frequently hinges upon whether the employer conducted a reasonable investigation into the employee's background. However, conducting such investigations has become an onerous task, particularly in light of the requirements of the federal Fair Credit Reporting Act and various state consumer protection laws which also apply to inquiries for employment purposes. Additionally, inquiries regarding arrest records should be avoided. In some states, such inquiries are prohibited by statute. In addition, the EEOC has ruled that disqualification of job applicants based upon arrest records (which did not result in convictions) has an adverse or disparate impact upon minorities in violation of Title VII of the Civil Rights Act of 1964, as amended. Furthermore, some states limit an employer's ability to deny employment based upon a conviction record unless the conviction is job related (e.g., New York).

Workers' Compensation

As a general rule, in most jurisdictions, an employee injured at work or in the course of his or her employment may not bring a civil suit for damages against his/her employer. Rather, the employee's remedy is limited to those benefits he or she may be entitled to receive under the applicable state workers' compensation law.

Intentional Misconduct

Most jurisdictions permit civil suits against an employer for injuries or death caused by the employer's intentional misconduct, such as an assault on a worker. These types of claims are rare because seldom, if ever, does the employer intend to harm its employee. The intentional misconduct of supervisors and managers, however, may be attributable to the employer if the employer is held to have ratified the act in some way. Generally, this does not happen because the manager or supervisor is considered to have acted independently without ratification and this breaks the causal connection (proximate cause) between the act and the employment.

Potential Liability to the Alleged Perpetrator

Defamation. Dealing with a potentially dangerous employee may involve communicating about that individual to others, such as a supervisor, other employees, or in responding to a request for references from another employer. Any of these communications has the potential to expose an employer to a claim for defamation. Even an attempt to limit information provided during a reference check may create liability if a subsequent employer hires the worker and the worker injures another.

Defamation is defined as the communication or publication of false information, which discredits a person by damaging the individual's character or reputation, and the information must be published to a third party and result in harm to the individual, e.g., not being hired.

Employers have a "qualified privilege" (which is a defense to a claim of defamation) to communicate information about employees. This qualified privilege enables employers to freely communicate, without fear of defamation suits, only if the statement is made in good faith and communicated only to those who have a need to know. Employers are unnecessarily exposed to defamation claims whenever a statement is malicious or communicated to someone who does not "need to know" the information.

False Imprisonment. Employees who are physically detained without justification by their employer may state a claim for false imprisonment. False imprisonment is defined as "the unlawful violation of the personal liberty of another."

Discrimination Based on Mental Disability under the ADA. The Americans With Disabilities Act (ADA) 42 U.S.C. §12101, et seq., prohibits employment discrimination against "otherwise qualified" individuals who meet the definition of disability on the basis of a mental or emotional impairment. Incidents of workplace violence often involve such individuals who may seek the protection of the ADA to avoid the negative employment consequences of their actions. An employee who is unable to refrain from physical violence or engages in violence or serious threatening behavior is, in all likelihood, not a "qualified" person under the ADA regardless of any established disability. However, liability for violating an individual's ADA rights can be substantial.

Preventive Strategies

Checklist for Applicant Screening and Reference Checking to Minimize the Risk of Hiring Mistakes

Initial Meeting

_____ Provide application, which has been reviewed by legal counsel, to prospective employee.

_____ Meet applicant face-to-face in private area.

_____ Review the blank application to explain information required and answer applicant's questions.

_____ Tell prospect to answer all questions and provide complete information.

_____ Carefully review completed application.

_____ Confirm accuracy of spelling and addresses concerning past employment, references, educational institutions, etc.

_____ Determine applicant's residence and how long he has lived there.

_____ Ask the applicant about any gaps in his employment history. (He should be able to explain any periodic lack of employment to your satisfaction).

_____ Ask the applicant if you will need additional information from him concerning any change of name, nickname, or his use of an assumed name to allow you to check his references and work record.

_____ Review the applicant's educational training if it has a bearing on the job for which he applies.

_____ Ask if the applicant has been convicted of a crime. (You may not ask if an applicant has been arrested.) You should explain to the applicant that a conviction of a crime will not automatically bar his employment. State law should be checked on this issue.

_____ If the applicant's duties will require driving, ask him if he has a valid driver's license and ask him to summarize his driving record for you. (In many states, you can obtain a driving "abstract" for an applicant from the state Department of Motor Vehicles. You should call the local DMV to determine what information is available and how you can get it.)

_____ Require applicant to sign a release and consent form for checking all references and obtaining all information necessary to thoroughly review employment history

After The Initial Meeting

_____ Check all personal/character references of the applicant.

  • How do they know him or her?
  • How long have they known him or her?
  • Upon what is the reference based? (personal observation/secondhand information?)
  • Do you need to ask the applicant for more current references?
  • Document all comments you receive.
  • Check all professional/employment references.
  • Determine job duties. (Do they coincide with those on the application?)
  • Determine length of employment.
  • Determine reasons applicant left previous job.
  • Determine if former employer was satisfied with applicant's performance.
  • Document all comments you receive.
  • Confirm educational information provided by applicant.
  • Order a copy of the applicant's driving record, if driving is required for the job.
  • If you are concerned about the applicant's criminal past and its effect on his fitness for the job, you may want to obtain a copy of the applicant's criminal record. Each state has different rules concerning the availability of these public records. Some possible sources of information are: the State Police, the Office of the State Attorney General, offices of the County Clerk in counties throughout the state, District Attorneys' offices, and your attorney.
  • Speak with the applicant again if you need clarification or additional information.
  • Review the application and all information with other decision-makers within the organization.
  • Decide.

Please Note: Under the federal Fair Credit Reporting Act and some state laws, employers are required to comply with various consent and notice obligations to conduct background investigations for job applicants and current employees. Please consult with legal counsel to insure your screening and hiring procedures comply with all applicable laws.

Minimizing the Risk of Responding to Requests for References

When responding to reference verifications:

  1. Avoid statements based on personal dislike.
  2. Do not exaggerate weaknesses unsupported by fact.
  3. Do not volunteer information to those not requesting it.
  4. Know the documented provable facts before relating the information.
  5. Centralize control over references or comments which reflect performance.
  6. Individuals conducting reference checks should be specifically designated and trained to handle such inquiries.
  7. Maintain confidential reference information separately from personnel files.

Recognizing Signs of Potential Workplace Conflict

Warning Signs That May Precede Violent Behavior

  1. Unusually high stress in the workplace, e.g., among employees who remain after a reduction in force.
  2. Physically intimidating behavior or threats by an employee.
  3. Significant changes in an employee's personal or work habits.
  4. Expressions by an employee of unusual or bizarre thoughts or introverted behavior following the lodging of complaints.
  5. An employee's fixation with weapons signaled by repeated discussion of weapons or exhibiting a weapon to get the reaction of other employees.
  6. Depression.
  7. Recent discipline for inappropriate behavior or harassment.
  8. Self-destructive behavior, such as abuse of drugs or alcohol.
  9. Marital or family problems.
  10. Employees who appear angry or paranoid.
  11. Employees with a history of interpersonal conflict.
  12. Obsessive behavior of a hostile or romantic nature towards co-workers.

"Profile" of a Violent or Disruptive Employee

The following factors may profile an individual disposed to engage in violent or disruptive behavior in the workplace. An employer should seek the advice of a competent mental health professional and/or legal counsel to determine whether the presence of these factors indicates an actual problem and before taking any adverse employment action.

  1. History of violent behavior.
  2. White male in his 30's or 40's
  3. Depends on job for self-esteem and sense of identity
  4. Few outside interests
  5. Noticeable swings in mood
  6. Usually alone
  7. Little or no family or social support
  8. Withdrawn
  9. Disgruntled -- blames others for his/her problems
  10. Directly or indirectly threatens and intimidates people
  11. History of substance abuse
  12. Serious stress in personal life -- feels out of control
  13. Fascination with weaponry- possible military history or gun collector

Implementation of Protective Measures

To reduce the risk for employees, customers and others, employers (with employee input) should implement protective measures based on information about workplace risk factors and take steps which would reduce or eliminate the risk. To achieve this, an employer should consider:

  1. installation of security lighting around the employer's premises;
  2. provision of adequate security in parking areas, common areas, stairwells, cafeterias, and lounges;
  3. limiting access to work areas to employees and authorized visitors only;
  4. prohibiting former employees from entering the premises without prior authorization;
  5. installation of alarms and surveillance cameras, where appropriate;
  6. increasing staff to avoid any employee working alone;
  7. training supervisors and employees in conflict resolution and non-violence techniques;
  8. scheduling regular rounds of police surveillance of the premises;
  9. limiting access to the premises during high risk hours (e.g. late at night and early in the morning);
  10. conducting thorough background investigations on job applicants (as described earlier);
  11. providing counseling and outplacement for employees whose employment has been involuntarily terminated.

Workplace Policies and Procedures for Preventing Harassment and Violence

To comply with recent mandates of the U. S. Supreme Court and other federal and state courts, as well as the Equal Employment Opportunity Commission and other fair employment practice agencies, all employers should develop and implement a policy prohibiting harassment and violence of any kind and encouraging employees to report all complaints of harassing or violent behavior to the designated management official. All reports should be documented, as well as the findings of the investigation. These reports should include statements of the reporting individual and other individuals who may have information relevant to the report. Observations or statements by the individual accused of misconduct also should be recorded. When appropriate, local law enforcement authorities should be notified. Once the investigation is completed, take appropriate action to counsel, discipline or terminate the offending violent employee as soon as possible.

All supervisors and managers should be trained on the harassment policy and the procedures for reporting and investigating complaints. All employees also should be trained in the employer's anti-harassment policy, including what kinds of behavior are considered to be inappropriate in the workplace and what the consequences are for engaging in prohibited behavior. Employees should understand the procedures for making and investigating a complaint, and they should be assured that they will not be retaliated against and should immediately report any additional inappropriate behavior.

Measures To Reduce The Risks Of Workplace Disruptions

  1. Do a comprehensive assessment of company policies regarding workplace violence.
  2. If no policies exist, develop written policies.
  3. Provide a means for communicating policies to all employees.
  4. Provide training and education to all employees regarding warning signs of potentially violent employees.
  5. Train managers in termination procedures, conflict resolution and observations skills.
  6. Educate managers about situational variables that may increase the likelihood of violence.
  7. Educate managers about personality characteristics that are correlated with potentially violent employees.
  8. Train supervisors to effectively manage a distraught or angry employee.
  9. Establish a confidential toll-free hot line.
  10. Include a general assessment of dangerousness on employee evaluations.
  11. Conduct periodic attitude surveys and/or behavioral observation programs.
  12. Have a trauma response program which includes an assessment of post-traumatic stress reactions.
  13. Most importantly, employees need to know that upper level management considers providing a safe and hostile-free workplace a top priority.

Preventive Measures To Handle An Angry Or Distraught Employee

  1. Be a good observer, notice any changes in an employees' behavior. Do not accept simple answers or explanations about the problem behavior.
  2. Document observable behavior. Be specific.
  3. Be prepared for the meeting with the employee. Know what you want to say and how you want to say it.
  4. Get to the point quickly and provide examples of what behaviors you are referring to.
  5. Ask the employee for his or her input. Asking questions is a good technique for allowing the manager to retain control over the situation even though the employee is talking.
  6. Ask how you can help. Have the employee come up with solutions with you.
  7. Identify what steps the employee must take to effectuate change in his or her conduct, which may include modifying aspects of the work environment.
  8. Plan for at least two to three follow-up meetings to check on progress. If necessary, modify plan with the employees' input.

Procedures To Reduce The Risk Of An Angry Or Violent Reaction By A Terminated Employee

  1. There should be a clear termination policy that is applied consistently to all employees.
  2. The employee should be treated with dignity and respect.
  3. Expect the employee to react and not necessarily be rational. Losing a job is one of the most psychologically stressful events someone can experience.
  4. Be honest and direct about reasons for the termination.
  5. Describe the behaviors and business reasons for the termination. Avoid moral judgments and personal accusations or vague descriptions such as "Your poor attitude".
  6. In most instances it may be prudent to have a Human Resource person present.
  7. Offer outplacement or EAP services if possible. These services have been shown to lessen the psychological impact of job loss.
  8. In cases of termination due to downsizing, acquisitions or mergers, do not side with the employee regarding the fairness of the decision. This will not be seen as an understanding gesture, but rather exacerbate negative feelings.
  9. Clearly state company benefits.
  10. Follow all procedures recommended for managing an angry employee.

©2001 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Focused on labor and employment law since 1958, Jackson Lewis P.C.'s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients' goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit https://www.jacksonlewis.com.