Workplace Violence: A Primer - ABA YLD 101 Practice Series

By Sarah P. Bryan

The murder of Yale graduate student Annie Le is a grim reminder that no workplace is immune from violence.  In fact, workplace violence, in its most extreme form, homicide, is the fourth-leading cause of fatal occupational injury in the United States, according to the Occupational Safety and Health Administration’s website on workplace violence.  Less extreme, but no less real, workplace violence can take the form of physical abuse, threatening conduct towards an employee or his/her family or friends, harassing phone calls, stalking, illegally possessing firearms, and the intentional destruction of company property, among others.

Workplace violence is not limited to actions occurring in the workplace.  It also encompasses actions that occur outside of the work setting, if the incident may lead to violence in the workplace.  Workplace violence can be perpetrated by employees, outsiders such as family members, significant others, clients, or complete strangers. 

Most instances of workplace violence are preceded by warning signs, including direct or indirect threats to harm others, a history of mental problems or violent behaviors, moral righteousness, inability to receive criticism, obsessive involvement with job/lack of interests outside the workplace, isolationism (often combined with a romantic interest in a coworker), carrying a weapon, and stated approval of workplace violence incidents. 

Employer Liability
Employers can be liable in tort for the violent acts of their employees under the theories of vicarious liability, negligent hiring and negligent supervision.

Under the theory of vicarious liability, an employer may be liable for the torts of an employee when those torts are committed by the employee, within the scope of employment, and in furtherance of the employer’s business.  For example, if a bouncer injures a customer while escorting him or her out of a bar with allegedly excessive force, the bar could be liable for this injury. 

Employers may also be liable for employee conduct when that conduct was foreseeable based on an employee’s prior bad activity or as a result of insufficient supervision.  In this case, the employer could be held negligent if it failures to detect an employee’s propensity to commit workplace violence, based on the employee’s past history, previous or current employment records, and/or improper and inadequate supervision.  For example, in some jurisdictions, a bar owner could be held liable for negligent hiring of an employee who assaulted someone if the employee’s drinking problem and violent propensities, which were known to the employer, made the assault and battery by that employee foreseeable.

Under current federal law, there are no specific regulations or standards relating to workplace violence.  However, employers have a legal duty to provide a safe workplace for their employees under the Occupational Safety and Health Act.  Section 5(a)(1) of the OSH Act (more commonly known as the “General Duty Clause”) requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”  The Occupational Safety and Health Administration (“OSHA”) recommends that employers establish a zero-tolerance policy towards workplace violence against – or by – their employees.  Under the Occupational Safety and Health Act, “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.” 

Twenty-four (24) states, Puerto Rico, and the Virgin Islands have adopted their own standards and enforcement policies.  In many states, but not all, these policies are identical to the Federal OSH Act.

Preventing Workplace Violence
Attorneys should advise their clients that, as employers, they can, and should, take preventative measures to decrease the risk of workplace violence.  OSHA notes that training employees on the warning signs of workplace violence increases employees’ likelihood of reporting suspicious conduct, which may prevent the violence from ever occurring. 

Attorneys should also advise their clients to secure their workplace by installing video surveillance, extra lighting, alarm systems, and other precautions like ID badges and electronic keys, as appropriate, that will minimize access to the workplace by outsiders.  OSHA recommends that businesses open to the public keep a minimal amount of cash in registers, especially during the evenings and late-night hours. 

Employee education and training can also help employees protect themselves.  Attorneys should advocate that all employees attend personal safety training programs and that employers create an environment in which employees are able to alert supervisors to any concerns about safety or security, and report all incidents in writing as soon as possible.  Attorneys should also advise their clients that their employees should also avoid traveling unaccompanied in unfamiliar locations or situations, if possible, and carry only the minimal amount of currency required. 

Words of Warning
Pre-employment criminal background checks can also be useful when seeking to evaluate an applicant’s risk of engaging in violent workplace behavior.  Attorneys must make their clients aware of several legal constraints on employers who opt to conduct such checks.  Under the Fair Credit Reporting Act, an employer that employs a third party to perform background checks of any sort on a prospective (or current) employee to use in connection with employment-related decision, must provide prior notice to the employee or applicant and obtain his or her written consent.  Before the employer can take any adverse action against the employee or applicant based on the results, the employer must provide the individual with the report, advance notice of the proposed adverse employment action, and an opportunity to explain or correct any erroneous information contained in the background check report. 

Many states have also enacted laws regulating what action an employer may take against an applicant or employee based on a conviction or arrest record.  Attorneys must examine the state laws applicable to the situation to ensure compliance with them.  In states where termination of an employee based upon an arrest record is not permitted, suspension with or without pay may be permissible.  However, the EEOC cautions that employment decisions based on arrest records may have a disparate impact on a protected class.  According to the EEOC, “if this is true, the arrest records must not only be related to the job at issue, but the employer must also evaluate whether the applicant or employee actually engaged in the misconduct.”

Some states restrict a company’s right to prevent employees from bringing firearms into the workplace or onto company property.  For example, in Florida and Georgia, employees can bring guns and ammunition to work “for self-defense” provided that the guns and ammunition are kept locked and hidden in the employee’s vehicle.  However, many employers find that this type of legislation infringes their right to control company property (the parking lots) and increases the potential for violence in the workplace.  There are several exceptions to this legislation, but, attorneys nonetheless must be aware of any applicable laws relating to firearms and tailor their clients’ workplace policies appropriately.

Workplace violence can have many victims. It can lead to harm, and even death, of an employee or customer. The ill-prepared employer may also fall prey to the fallout of workplace violence.  Attorneys should be aware of the potential liability stemming from incidents of workplace violence and equip their clients with the necessary tools to minimize the risk of harm to their employees and businesses.

Resources

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About the Author

Sarah P. Bryan ( sbryan@mmwr.com ) is an Associate at Montgomery, McCracken, Walker & Rhoads, LLP in Philadelphia, PA. 

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