WHEN EMPLOYEES SNAP:
RECOGNIZING AND
PREVENTING VIOLENCE
IN THE WORKPLACE
7700 Bonhomme Ave., Suite 650
St. Louis, MO 63105
(314) 802-3935
Timothy A. Garnett, Esq.
(314) 802-3940
timothy.garnett@ogletreedeakins.com
R. Lance Witcher, Esq.
(314) 802-3948
lance.witcher@ogletreedeakins.com
When Employees Snap: Recognizing and Preventing Violence in the Workplace
Tim Garnett and R. Lance Witcher
Ogletree Deakins Law Firm
Shortly after a former postal worker went on a shooting spree in 1991 in
Royal Oak, Michigan, the US. Postal Service fired Tom Lussier, a
technician in the Portland, Maine Post Office. According to his
supervisor, Lussier was “mentally unbalanced and capable of a Royal
Oak-type incident.” Lussier was also observed by other employees as
having erratic emotional behavior with verbal outbursts.
Lussier challenged his termination in federal court, and a Portland,
Maine judge ruled that Mr. Lussier’s discharge was illegal because he
had a mental disability which was protected by the Americans with
Disabilities Act.
The Lussier case illustrates a legal Catch-22 facing employers as they try to address growing
concerns about safety on the job. On the one hand, courts and federal agencies are increasingly
holding companies liable for their employee’s violent outbreaks. Employers have been held liable for
negligently hiring dangerous workers. The courts have also held that companies are responsible for
retaining workers who weren’t a threat when they were hired, later turned out to be violent, but were not
terminated after a violent incident.
However, the Americans with Disabilities Act, along with other anti-discrimination laws, are
making it more difficult for employers to fire mentally unstable employees. And Title VII and privacy
laws also restrain companies from exhaustively screening job applicants for hints of violence.
So how does an employer get through this legal mine field? What are the warning signs of a
potentially violent employee? What are the legal parameters for gathering information about
employees and what can you do with it once you have it? We will address these issues and provide
some guidance on recognizing and addressing the violent employee.
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THE SOURCE OF THE PROBLEM
A.
The Statistics
During the 1980s and early 1990s, homicide was the second leading cause of death for
work-related fatalities. However, homicides in the workplace declined by over 50% from 1994 to
2008. Even considering the decline, more than 2 million incidents of workplace violence occur in
the US each year, costing businesses more than $70 billion. Additionally, the number of workrelated homicides spiked again in 2009 because of the struggling economy. But, workplace
homicides declined 7% in 2010 to the lowest total ever recorded, but workplace homicides
involving woman increased by 13%. In 2009-2010, homicides accounted for 11% of the total
fatalities in the workplace.
B.
Who Commits These Workplace Crimes?
A Federal Express pilot took a claw hammer and attacked three others in the cockpit,
forcing one of them to put the fully loaded DC-10 cargo plane through a series of violent rolls and nose
dive that brought the whole crew back bleeding. A purchasing manager in suburban Chicago stabbed
his boss to death because, police say, the two couldn’t agree on how to handle some paperwork. And a
technician who quit because he had trouble working for a woman sneaked back inside his fiber
optics laboratory, pulled out a semiautomatic pistol and started firing at workers, who ducked and fled
or curled up in closets and file cabinets. By the time he finished the job, two were dead, two were
injured; he walked upstairs to an office and shot himself in the head.
The violent outburst of the fiber optics technician was not a complete surprise to those who
knew him. He was a loner and, some say, not very good at his job; he had chafed under a female
supervisor. A few days after quitting, he attempted to return to his job, only to be escorted off the
property by the police.
The case of Auburn R. Calloway, on the other hand, who attacked three of his fellow Federal
Express pilots, was unpredictable. Calloway had organized his Neighborhood Watch Program and was
an ex-Navy pilot. However, he was scheduled to appear the next day before a disciplinary hearing at
Federal Express to face charges that he had lied about his military and work experience.
What is the profile of the potentially dangerous employee? Whoever you ask may give you
different opinions. According to some experts, violent employees tend to be white, male, 35 years of
age or older, with few interests outside of work, an affinity for guns, a history of family problems, a
tendency to hold grudges and extremist opinions, and may be in the habit of abusing drugs and alcohol.
But others argue that past workplace rampages have been committed by men and women of all races and
all ages. Moreover, in most cases alcohol and drugs are not involved nor is there a record of earlier
violence. Relying on profiles carries a twofold risk: people will be wrongfully tagged as dangerous
simply because they match the profile, and others will be mistakenly disregarded because they don’t.
More reliable predictors, experts say, would include behavior, such as a worker acting paranoid,
depressed or suicidal and continually filing unreasonable grievances and lawsuits.
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THE LEGAL DUTIES OF EMPLOYERS
An employer who hires a mentally unstable employee may be placed in a Catch-22. If the
employer takes adverse employment action against such an employee, the employer could face a
discrimination suit. If the employer takes no action with respect to a potentially dangerous employee,
however, and violence occurs, the employer could be liable to injured third parties under the negligent
hiring and/or negligent retention theories.
An individual injured by a violent employee may claim that an employer was negligent in failing
to check references or in placing an employee with known or suspected violent tendencies in a
position of potential harm to others. These two legal theories, referred to as “negligent hiring” and
“negligent retention,” can cause significant liability for employers.
A $210,000 verdict was awarded against McDonald’s Corporation for hiring a developmentally
disabled worker with a history of assaulting children after he attacked a three-year-old youngster in a
McDonald’s restaurant. Another well known case resulted in a $2.5 million verdict against the City of New
York after an employee raped a nine year old youngster at a City playground. The City was held liable
under the negligent retention theory because the violent worker, a convicted felon, was hired as a
playground maintenance worker.
A.
Negligent Hiring
The difference between negligent hiring and negligent retention lies primarily in the time frame
in which the alleged negligence occurs and the degree of knowledge of the employer. Under a negligent
hiring cause of action, an employer may be liable where the person is harmed, the employer failed to
do an adequate preemployment screening, and the employee’s violent tendencies would have been
identified if the employer had taken such measures.
For example, in Pontiacs v. K.M.S. Investments, the manager of an apartment complex raped a
tenant at knife point after gaining entry to her apartment using a passkey. The victim filed a negligent
hiring suit against the owners of the complex, contending they failed to adequately investigate the
manager’s background before hiring him. When applying for the job, the manager provided no address
for one of his two references and no phone number for either. He entered “traffic tickets” in
response to the question of whether he had been convicted of any crimes. The employer conducted no
further investigation. Evidence revealed that the manager had several prior convictions for aggravated
robbery, burglary, and receiving stolen goods. In finding the company responsible for the rape of the tenant,
the court held that the scope of the background investigation was not adequate given the risk involved.
That is, since the manager had free access to all apartments, the employer owed a higher duty to make
a reasonable background investigation to determine if there was any foreseeable risk to the tenants.
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Meanwhile, in Strickland v. Communications & Cable of Chicago, a cable installer raped the
plaintiff in her home, in front of her child. The plaintiff alleged that the Cable Company had conducted
little or no investigation into the attacker’s employment history, and therefore was liable for negligent
hiring him. The court, however, concluded that the plaintiff’s allegation was insufficient to state a claim
because she could only prove that the defendant should have known that the attacking employee had a
tendency to commit traffic violations. The court reasoned that the knowledge regarding the traffic
violations would not have put the Cable Company on notice that the employee might sexually assault a
customer.
Employers are not always required to run a criminal background check on potential
employees. The employer’s obligation is dependent upon the risk created by putting the
employee in contact with customers, or members of the public. Where an applicant will be in
contact with customers or members of the public, employers should (1) question any criminal
history disclosed by the applicant, (2) question any gaps in the applicant’s employment, (3)
verify the applicant’s work history with all former employers, and (4) document all information
and screening efforts.
B.
Negligent Retention
Negligent retention claims arise when a current employee displays dangerous proclivities on a
job and the employer fails to react. For example, in Bryant v. Livigni, a company was held liable
under the negligent retention theory after a store manager injured a four-year-old boy. The manager
started as a bagger, and over a 15-year-period worked himself up to the manager position. While off
duty, the manager stopped by the store while he was intoxicated. The manager saw a young man
urinating on a store wall. The manager chased the child to a parked car where the youth got in the
back seat of the car. The manager then pulled a four-year-old boy, who was also sitting in the back
seat of the same car, and beat the boy. The youngster suffered injuries which required hospitalization.
At trial, evidence was presented regarding two batteries committed by the manager prior to his
assault of the boy. Seven years before, the manager had thrown a crate at a subordinate at work, and two
years before, had beaten his 13-year-old son while disciplining him, breaking his collarbone. The store
claimed that it had no knowledge of the manager’s battery of his son, since he did not directly inform
management of the incident. The court held, however, that knowledge of the manager’s prior battery
could be imputed to the store by virtue of the knowledge held by coworkers, not management.
C.
Elements of a Negligent Hiring or Retention Claim
Employers must understand the elements of negligent hiring or negligent retention claims, in
order to avoid such claims. The general elements of negligence are: (1) the existence of a legal duty to
use due care, (2) breach of that duty, and (3) the breach is the proximate cause of the plaintiff’s injury.
Proximate cause is a legal term of art that relates to the foreseeablility of an event occurring due to an
employee’s behavior. For that reason, an employer will only be liable if the risk of harm from an
employee is reasonably foreseeable.
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For an employer to be liable under a negligent hiring or negligent retention claim, the
plaintiff must establish an employer-employee relationship. Generally, an employee is anyone who is
subject to the employer’s right of control with respect to any work to be performed in the course and
scope of employment. An individual’s title, such as independent contractor or agent, is
inconsequential. Instead, the key is whether the employer has the right to control the manner and
means of accomplishing the work. If so, an employment relationship exists. Determining the right
to control is generally straight forward, as the right to fire an employee at will without cause is
evidence of the right to control. In other words, if the employer can fire the individual, an
employment relationship likely exists
For instance, in Bost v. Clark, a Missouri case, the plaintiff sued a hospital, alleging the
hospital negligently hired and retained a doctor. The court reasoned that the plaintiff had to establish
an employee-employer relationship to establish a cause of action for negligent hiring and retention,
which the plaintiff failed to prove.
After establishing the employer-employee relationship, the plaintiff next has to prove that the
employer somehow acted negligently. In other words, the plaintiff must show that the employer
knew, or should have known, the employee posed an unreasonable risk of harm to third parties due to
the employment. So long as the employer was negligent in hiring or retaining the employee, the
employer can be held liable for actions the employee commits that are outside the course and scope
of employment, even if there is no nexus between the tortious conduct and the employment. Thus,
an employer can be held liable under a negligent hiring or retention claim if the employer knew or
should have known the employee was unfit for the job, and did nothing about it. As a result it is
particularly important to carefully screen applicants and monitor employees.
D.
Strict Liability for Harassment
Moreover, Missouri employers can be strictly liable for harassment where they fail to
conduct an adequate background investigation. By way of background, a Missouri Human
Rights Act claim for discrimination arising from a supervisor’s harassment based on a person’s
protected status may be defended in Missouri state court using the Ellerth and Faragher
affirmative defense as set out by the U.S. Supreme Court. See Herndon v. City of Manchester,
284 S.W.3d 682 (Mo. App. 2009). However, in Herndon, the court held that an employer does
not prove the affirmative defense by simply showing it had an anti-harassment policy in place.
Rather, the court there found that an employer must prove it in fact exercised reasonable care to
prevent harassment, which in that case the court said should have included an inquiry into the
supervisor’s background which would have revealed past instances of harassment.
In Herndon, a female police officer sued her employer and supervisor under the MHRA,
alleging she was subjected to inappropriate conduct of a sexual nature by the defendant
supervisor. The City argued that it was not liable for the supervisor’ s harassment because it had
taken reasonable care to prevent harassment by implementing an anti-harassment policy and
remedied the harassment by promptly investigating the plaintiff’s complaint and terminating the
supervisor’s employment. In response to the City’s motion for summary judgment, the plaintiff
introduced evidence that fifteen years prior to the City hiring the supervisor, the supervisor had
been discharged by a prior employer as a result of a citizen complaint of sexual misconduct.
Plaintiff argued that in order for the City to demonstrate its efforts to prevent harassment were
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reasonable, it had to inquire into the supervisor’s prior disciplinary record. The City countered,
arguing it had requested documentation of the supervisor’s prior employment, including his
disciplinary record, but the supervisor’s former employer only provided the City the supervisor’s
identifying information and dates of employment. Further, the City argued the former employer,
like the City, was not likely to disclose that information for fear of a libel claim by the
supervisor. Despite the fact that the prior bad acts of the supervisor had occurred more than
fifteen years prior to the City hiring the supervisor and were acts perpetrated against a citizen and
not a coworker, the Court of Appeals held the acts were not too remote in time or irrelevant.
Moreover, the Court of Appeals held that while a jury may agree with the City that it had acted
reasonably, in the Court’s opinion, the City should have taken additional steps to acquire
disciplinary information after receiving only limited information from the supervisor’s prior
employer. This decision reinforces the recommendation above that employers, particularly those
in Missouri, conduct adequate background investigations of applicants.
E.
OSHA Regulations
In addition to negligent hiring/retention theories, another theory that may be used in these
situations is based on the federal Occupational Safety and Health Act. That statute requires that
employers provide a workplace that is free of hazards to employees. Although there have been few
reported OSHA-based legal claims in this field, it is quite possible that an employee could rely on
safety statutes and argue the employer failed to maintain a violence-free workplace. For example,
OSHA has developed guidelines and recommendations for taxi and livery drivers, late night retail
establishments and health care and social service workers. Many of these guidelines are applicable
to other industries as well. Employers may want to consider implementing some or all of OSHA’s
guidelines as such action may be a defense to potential claims of negligent retention. For more
information, visit OSHA’s website.
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THE CATCH-22 FOR EMPLOYERS
Notwithstanding the increasing liability of employers for negligent hiring/retention lawsuits,
employers are often limited on the type of information they can gather about employees as well as
limitations on violating anti-discrimination laws.
A.
Arrest Records and Convictions
Several states have statutes protecting the confidentiality of arrest records. Moreover, EEOC
regulations prohibit employers from using an applicant’s arrest record in making hiring decisions.
The EEOC’s reasoning is that more minorities have arrest records than non-minorities, and therefore,
relying on arrest records can impact minorities more.
For example, the use of records, absent convictions, can give rise to racial discrimination
claims. In Gregory v. Litton Systems, Inc., a black job applicant alleged race discrimination under
Title VII after an offer of employment previously made to him was withdrawn. The applicant had
been arrested 14 times. He was never convicted of any criminal offense. Litton Systems had a policy
of not hiring any person who had been arrested “on a number of occasions” for offenses other than
minor traffic violations. When the applicant’s arrest record was disclosed to Litton Systems, the
company withdrew its job offer.
The Gregory court held that this employment policy was discriminatory. The court
concluded that excluding from employment a person who has been arrested several times, but
never convicted, is unlawful because it has the foreseeable affect of denying black job applicants
an equal opportunity for employment.
The EEOC also limits an employer’s use of criminal convictions in making hiring decisions.
On April 25, 2012, the EEOC issued, after a vote of 4-1, an updated Enforcement Guidance on
the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII
(the “Guidance”). The Guidance, which takes effect immediately, is a summary of the EEOC’s
long-held position that employers’ reliance on arrest and conviction records may have a disparate
impact on individuals because of their race or national origin, with significant changes in certain
areas that are important to most employers. Republican-appointee Commissioner Constance S.
Barker dissented, while Republican-appointee Commissioner Victoria A. Lipnic voted with the
majority, after reportedly securing some employer-friendly concessions in the Guidance. There
was a push to get the Guidance approved before Democrat-appointee Commissioner Stuart J.
Ishimaru steps down later this month.
According to the EEOC Guidance, Title VII violations may occur in two employment
background check situations:
1.
When employers treat criminal history differently for different
applicants/employees, based on their race or national origin (disparate treatment)
or
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2.
When an employer’s neutral background check policy or practice
disproportionately impacts protected individuals (disparate impact), unless the
policy is job-related and consistent with business necessity.
Not surprisingly, the majority of the Guidance discusses the second “disparate impact”
type of Title VII race or national origin discrimination, although not before the Commission
reminds employers that it may find disparate treatment when employers make distinctions
between two applicants/employees of different races based on the employer’s judgment as to the
relative severity of past criminal convictions.
The Guidance explains that, for a disparate impact claim, the EEOC first must identify
the policy or practice causing the disparate impact and then confirm that there is a disparate
impact. The commentary associated with the second “confirmation” step suggests employers
may expect more EEOC requests for voluminous applicant and hiring data, in evaluating
disparate impact.
Once the EEOC has established disparate impact, the employer has the burden of proving
the affirmative defense that its policy or practice is job-related and consistent with business
necessity. In the Guidance, the Commission repeats its long-held position that an arrest, by itself,
is never job-related and consistent with business necessity because an arrest does not establish
that criminal conduct has occurred, individuals are presumed innocent until proven guilty, and
many arrests do not result in convictions.
Although the EEOC identifies two circumstances allowing employers to establish the
“job-related and consistent with business necessity” defense, only one is likely to be useful for
most private-sector employers—a targeted screening process that takes into account the
following factors:
1.
The nature and gravity of the offense or conduct;
2.
The time that has passed since the offense, conduct, and/or completion of the
sentence; and
3.
The nature of the job held or sought.
For any individuals “screened out” by this targeted screening process, the EEOC
explains, the employer’s policy should then provide “an opportunity for an individualized
assessment.” While the EEOC stops just short of actually requiring employers to conduct
individualized assessments as part of their targeted screening process, the Guidance repeatedly
stresses that a screening process that does not include individualized assessments is more likely
to violate Title VII. The between-the-lines message is that individualized assessments are now
expected. The Guidance provides several factors for consideration during the individualized
assessment, including some directly-relevant ones like a showing that the individual was
incorrectly identified in the background check and less-relevant ones like “employment or
character references.”
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The second way an employer can satisfy the “job-related and consistent with business
necessity” defense is complicated and costly—for each position, the employer must validate the
criminal conduct exclusion, by using the Uniform Guidelines on Employee Selection Procedures,
including its statistical models, to validate that criminal conduct data relates to subsequent work
performance. Even the Guidance seems to acknowledge that issues about the availability of
criminal conduct data and the application of validation studies may be tough hurdles for
employers to clear.
In what is sure to be a controversial one-sentence “best practice,” the EEOC recommends
that employers not ask about convictions on job applications.
Many in the business community have complained that the Guidance was rushed through
with no public rulemaking or the associated process for public comment—a refrain recently
echoed by the Senate Appropriations Subcommittee responsible for EEOC funding and
Commissioner Barker in her dissent. Additionally, while courts are required to defer to EEOC
guidance like this to some extent, EEOC guidance is not controlling on courts’ interpretation of
Title VII and is not entitled to the high level of deference given to federal regulations. Instead,
courts and litigants may refer to the EEOC’s interpretation for guidance, based on the guidance’s
thoroughness, the validity of its reasoning, and its consistency with earlier EEOC
pronouncements. Nevertheless, in light of the new Guidance, prudent employers should
reexamine their background check policies and practices.
B.
Defamation
Other legal theories have also closed the doors on employers acquiring information about
applicants. Defamation claims are becoming more prevalent in this area when a company discloses
to a prospective employer a false reason for an employee’s termination. For example, a potential
defamation claim exists when an employer falsely accuses an employee of gross misconduct, theft,
embezzlement, falsification of records, using or abusing drugs or professional incompetence.
Defamatory statements can occur either orally (slander) or in writing (libel) and can be
communicated to individuals inside or outside the company. Although most states recognize that a
company has a “qualified privilege” to make derogatory statements about employees to certain persons
within the company and to prospective employers, most employers are fearful of unwarranted
lawsuits. Therefore many employers take the “no comment” approach when asked for job references.
C.
Disability Claims
The Americans with Disabilities Act is creating even greater problems for employers in
addressing the issue of violence in the workplace. This is best illustrated by a case involving the
Post Office. Charlotte Franklin, an employee in the United States Post Office in St. Bernard, Ohio
began suffering from paranoid schizophrenia. Franklin was frequently hospitalized because of her
mental illness, she had a poor attendance record (464 days absent in four years) and had been arrested
for passing bad checks, assault and disorderly conduct. She was first terminated from the Postal
Service after she attempted to enter the office of the Governor of Ohio with a concealed weapon.
She was reinstated, however, after she agreed to take her medication for her mental illness. Only
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10 months later, she forcibly attempted to enter the Governor’s office and was again discharged. The
Post Office reinstated her a second time after the union intervened on her behalf. After being
reinstated the second time, Franklin tried to force her way into the White House in Washington
and was charged with assaulting a Secret Service officer.
After the third incident, Franklin was permanently discharged. Franklin brought suit in federal
district court claiming she was discriminated against based on her mental disability. Although the court
dismissed her claim, the court found that the Postal Service had extended reasonable
accommodation to her by rehiring her twice and warning her about her conduct. How many
violent episodes must be tolerated before an employer can justifiably terminate a mentally ill
employee? Unfortunately, the court did not answer this critical question.
In addition to protecting people with disabilities, the Americans with Disabilities Act also
limits the type of information employers can gather about employees. Generally, most medical
inquiries or examinations are prohibited prior to the job offer being made. Therefore, an employer is
limited in its ability to fully evaluate an employee’s dangerous proclivities prior to making the hiring
decision.
ACTION ITEMS FOR EMPLOYERS
While a company may have a legal duty to protect its workers and customers from workplace
violence, it must also be mindful of the rights of the alleged wrongdoer. An employer who overreacts
to concerns of workplace violence by prematurely terminating employees suspected of violent
tendencies may risk claims of wrongful discharge, defamation and invasion of privacy.
However, there are many practical suggestions employers should follow to minimize
liability in this area:
1.
Verify accuracy of employment application. One way to avoid being
second-guessed about firing potentially dangerous employees is to try to avoid
hiring them in the first place. Always do a complete check of resumes and job
applications, paying particular attention to gaps in employment which could reflect
imprisonment or other types of detention. If you ask applicants to provide references,
you must attempt to contact them. Although you may receive no response or a neutral
reference, a record should be made that the employer has attempted to communicate
with the reference. Failure to do so can lead to claims of negligent hiring if a reference
check could have provided information regarding an applicant’s violent past. Similarly,
as demonstrated by Herndon, failure to do so can make Missouri employers strictly
liable for harassment
2.
Criminal record checks. Check criminal records for applicants in sensitive
positions or in positions where they have contact with the elderly or young, or access to
cash or other valuables. Criminal checks are easy to do and the applicable records are
readily available from state and federal courts. However, consider EEOC guidance
before doing so.
3.
Drug and alcohol test.
Drug and alcohol test employees before starting their
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employment. Illegal drug users pose greater risks for theft and violence, are more prone
to accidents, and tend to have more personal problems that they may try to blame on
their employers.
4.
Test applicants for employment.
Some employers use sophisticated
psychological tests, honesty tests, and post-offer medical examinations which
comply with the Americans with Disabilities Act as devices to screen applicants
for employment. The Employee Polygraph Protection Act of 1988 significantly
curtails a private employer’s ability to require polygraph testing, or other methods
of lie detection testing, of job applicants or current employees.
5.
Security task force. Many employers are creating a security task force to review
and develop internal security precautions. Professional security consultants and legal
counsel can also be retained to review an employer’s security program, as well as the
preparedness of its staff in the event of an emergency. Engaging in such reviews may, at a
minimum, help insulate an employer from claims of negligence associated with
workplace violence.
6.
Adopt a Violence Control Plan, thoroughly train management and human
resource personnel and develop a violence prevention and reaction team.
Management should be educated that the problem of workplace violence is
growing and could be devastating. Management should designate a team,
including representatives from human resources, that is responsible for
developing a Violence Control Plan. Human resource and management personnel
should be trained and entrusted to report potentially dangerous situations. Human
resource personnel should also be trained to provide appropriate medical,
psychological, religious and other appropriate referrals for employees and
employee family members in the event of workplace violence. Finally, employers
should form a partnership with local law enforcement and labor counsel and
should seek advice from both when situations arise.
7.
Provide training and instruction so employees can deal with medical
emergencies, bomb threats, criminal conduct, and violence in the workplace.
Any plan for dealing with emergencies must be carefully drafted as it could
provide the basis for a claim that the employer took inadequate steps to provide a
safe workplace. The company should develop a relationship with local law
enforcement authorities. The employer may want to establish an internal hotline
for workplace violence and instruct employees to call 911 in the event of an
incident of violence. The company also should establish procedures for the
dissemination of information to the media in the event that an incident of
workplace violence occurs.
8.
Train supervisors regarding the early warning signs of potentially violent
behavior. Supervisor training should cover the following topics: methods to
handle stress, the role of the supervisor in conflict resolution, identification of the
warning signs of violent behavior, how to relate to difficult people, the
importance of treating employees fairly, how to prepare for and administer
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employee terminations, and the cardinal rule, “do not criticize the employee,
criticize the action.”
9.
First responders. “Front line” employees such as receptionists, customer service
representatives and tellers should be educated to respond quickly, calmly and appropriately
to emergency situations.
10.
Provide adequate workplace security through alarm systems, surveillance
cameras, and/or security personnel. Employees should be advised of the
potential of surveillance cameras to eliminate any expectation of privacy that an
employee could rely on as a basis for an invasion of privacy claim. Employers
also should limit outsiders’ access to the premises by ensuring that postings and
signs are legally correct and by developing a draft “No Trespassing” letter and
being prepared to send it when the occasion arises.
11.
Use professionals. Hire psychologists or psychiatrists who have expertise in
identifying potentially violent workers. Professionals are better at evaluating the
dangerous proclivities of an employee than managers, so rely on their expertise.
12.
Adequately inform and warn employees whenever there is a threat of a crisis.
Care should be taken not to identify or defame any person thought to be a
potential source of workplace violence. Management employees should be
accessible to employees at all times during a potential crisis.
13.
Supplement existing personnel policies and procedures to address workplace
searches. Revise personnel policies to allow employer-ordered searches of
lockers, desks, and other locations where firearms and other instruments of
violence could be stored. If policies are properly drafted, the employee will know
that these areas might be searched and the employee will not have an expectation
of privacy which could prevent a search and/or give rise to an invasion of privacy
claim if a search was to occur.
14.
Create policies dealing with workplace violence. Employers should review
existing personnel policies, modifying them if necessary, so that prohibitions are
in place against: (1) fighting; (2) making threats; (3) coercion; (4) the possession
of weapons; (5) use or possession of alcohol, drugs, or mind-altering substances
on company property and/or while actually conducting day-to-day company
business; and (6) any conduct which is likely to injure or kill employees or
damage property.
15.
Consider making employee assistance programs and counseling available to
employees. Such programs, while sometimes costly, may aid an employee in
resolving a potentially explosive situation. Employers should ensure that
counseling is available for employees on both a mandatory and voluntary basis.
Additionally, these policies and programs should be publicized so that troubled
employees can take full advantage of them. As a matter of preparation,
employers should interview and select counseling resources to be made available
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should a violent situation occur, including off-premises events like employee
suicides.
16.
Consider the use of courts to prevent workplace violence. The company may
be able to obtain a restraining order to prevent an employee from having access to
the workplace. Such steps, however, may escalate the situation.
17.
Review your Insurance Coverage.
Employers should undertake a
comprehensive review of all insurance coverage to determine if violent acts are
covered by insurance and, if not, what steps may be taken to extend insurance
coverage to such acts.
Additionally, employers should minimize the effects of violence by dealing swiftly and
fairly with employees who engage in such behavior. Termination procedures should attempt to
reduce the potential for embarrassment, rage, and violence. If there is any sign that violence
might occur, however, the employer’s violence control program should allow for the rapid
removal of a terminated employee, including notification of on-site security personnel when a
potentially dangerous employee is to be terminated.
Workplace violence is a genuine risk facing all employers and the impact and costs of
workplace violence can be devastating. While the steps discussed above cannot absolutely
prevent violence in the workplace, they may help to avoid it. The serious human and legal
consequences of workplace violence require that responsible companies allocate adequate time
and resources for the prevention of violence and, if prevention fails, for the minimization of its
impact.
KEEPING YOUR EMPLOYEES SAFE
A.
Reporting Violence.
The timely reporting of violence is an essential element to securing the safety of
employees. Anything that makes employees uncomfortable should be reported to security or
supervision immediately but particularly the following:
•
Unfamiliar people in the workplace
•
Signs of weapons
•
All threats, even by non-employees
•
Non-functioning locks, lights or security equipment
•
Signs of domestic abuse
•
Anything making you uncomfortable or suspicious
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In addition to prompt reporting of violent incidents, employers must train employees to
(1) understand and comply with workplace violence prevention programs and other safety and
security measures and (2) participate in employee complaints or suggestion procedures covering
safety and security concerns.
B.
Incident Response.
First and foremost, any and all employees must secure their own safety and the safety of
others to the degree possible. Supervisors must be trained to:
•
Intervene at the first signs of trouble.
•
Employ good listening skills to defuse potential trouble situations.
•
Remain focused on observed behavior.
•
Determine the cause of the problem.
•
Issue discipline appropriately.
Below are some things for employers to train employees to remember in different
scenarios:
Coping with angry or hostile co-workers or client
•
Stay calm. Listen attentively.
•
Acknowledge the issue and express your desire to help.
•
Maintain eye contact.
•
Be courteous and patient.
•
Keep the situation in control.
For a person shouting, swearing or threatening
•
Signal that you need help (use a prearranged code word or duress alarm).
•
Do not make any calls yourself.
•
Try to de-escalate the situation (stay calm, maintain eye contact,
be attentive).
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•
Try to put some space between yourself and the subject.
•
If you feel in danger, try to escape to a safe area.
For someone with a gun, knife or other weapon
•
Stay calm.
Quietly signal
prearranged code).
for help
(with
duress
•
Maintain eye contact, be attentive, courteous & cooperative.
•
Keep talking, stall for time, de-escalate.
•
Do NOT try to grab the weapon.
alarm
or
As part of an incident response that does not actually involve physical contact, employers
should attempt to meet with the offending employee. Listed below are some guidelines with
conducting those meetings:
•
Meet in privacy but not alone if violence is suspected.
•
Allow adequate “personal space” to keep employee from feeling trapped.
•
Ask, in non-threatening tone, if everything is alright.
•
•
•
Listen carefully and emphatically to what the employee is saying, as well
as what employee is not saying.
Check for understanding of the problem by repeating what you
have heard.
Encourage employee to identify possible solutions then work together to
prepare a plan of action.
•
Reassure the employee that you want to succeed.
•
Remain calm and respectful.
•
•
If emotions take over, use period of silence to allow the employee to
regain composure.
Stick to the facts and avoid judging, diagnosing or blaming.
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•
•
•
•
Avoid actions (like staring) that are likely to provoke defensiveness or be
perceived as threatening.
Be alert to body language that may signal trouble (e.g., sweating, lack of
eye contact, glaring, finger pointing, raised voice, flushed voice, pacing,
withdrawal, slamming objects or throwing things, rapid breathing,
clenched jaws or fists).
If appropriate suggest EAP.
Encourage the employee to come to you if additional assistance
is required.
After the incident response meeting, employers should (1) monitor the employee’s
behavior and document any changes, (2) provide on-going support by taking time to see how the
employee is doing, and (3) not discuss the employee’s problems with anyone except those people
with a “need to know.”
In addition, following a critical incident, employers should be aware of the
following:
•
•
•
A multitude of reactions that victims and co-workers are likely
to experience.
Victims are likely to exhibit a variety of “emotional aftershocks” that
range in seriousness from feelings of anger to chemical dependency.
These reactions may appear immediately following the incident, or may be
delayed for a period of several days – and sometimes, even several weeks
or months.
We are not at a point in our society of creating fortresses in the workplace. Nevertheless,
violence in the workplace is a serious problem that must be addressed by all employers.
Recognizing the problem in advance is the necessary first step in avoiding potential liability in the
event an employee “goes postal.”
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