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By John Stahl, Esq.
The December 2012 incident at the Sandy Hook Elementary School is a recent example of a mass shooting affecting a person in a workplace (e.g., school principal) with whom the shooter has a prior relationship. A concurrent article in the Journal of Occupational and Environmental Medicine addresses the related phenomenon of workplace homicides in which the assailant has a relationship with either the business or an employee.
The article is titled “An Examination of Strategies for Preventing Workplace Homicides Committed by Perpetrators That Have a Prior Relationship With the Workplace or its Employees.” Kelly K. Gurka, MPH, Ph.D., is the lead author.
Gurka explains that the article’s conclusions reflect the findings of “a case-control study examining the relationship between recommended violence-prevention strategies and prior-relationship workplace homicides in North Carolina.” The spoilers are that the results demonstrate that “select strategies recommended to prevent robberies and subsequent violence may also afford protection against prior-relationship homicide,” but that “strategies need to be developed and evaluated specifically for preventing prior-relationship homicides.”
Overview of Workplace Homicide
The article reports that homicide “is the second leading cause of fatal occupational injury among women and the fourth leading cause of such deaths among men” in the United States. The four categories of such incidents are:
1. The assailant lacks any valid connection with the business or its employees;
2. The assailant is a customer or client who receives goods or services from the business;
3. The assailant is a current or former employee;
4. The assailant “has a personal relationship, such as intimate partnership, with an employee.”
The provided statistics are that between 12 and 23 percent of annual workplace homicides fall in the three “prior relationship” categories in which the assailant has a pre-existing connection with the business and/or an employee. A wide-scale reduction in robbery-related homicide has lowered the rate of workplace homicide, but data regarding this demonstrates as well that “the rate of workplace homicide committed by perpetrators known to workplaces or their employees has declined at a much slower rate” than killings in which the assailant lacks any valid connection with the business or its employees.
Gurka states that the workplace violence protection methods that the National Institute for Occupational Safety and Health (NIOSH) recommends include:
The article reports that the effectiveness of these precautions varies. Regarding the ones with the most impact, the study concludes that “only 2 NIOSH-recommended strategies for workplace violence prevention were shown to be protective against prior-relationship homicide: use of at least one security-device and limiting access to the workplace by locking entrances when possible.”
Gurka qualifies this conclusion by advising that “history of violence [in a workplace] should be assessed as a potential modifier of the prevention strategy and prior-relationship homicide association.” Gurka notes as well that limited information regarding the quality of preventative training that employees receive hinders efforts to assess the effectiveness of that preventative measure.
Study Parameters and Results
The research compared statistics related to North Carolina workplaces that experienced prior-relationship homicides between 1994 and 2003 with data related to a sample of North Carolina businesses that did not experience those incidents from 1994 to 1998.
The research shows that 269, or 4 percent, of the 7,128 deaths that the North Carolina Office of the Chief Medical Examiner classified as homicides between 1994 and 2003 “were homicides occurring at work.” Sixty nine, or roughly 25 percent, of the work-related homicides qualified as a “prior-relationship” homicide. The study results are based on 55 of the 69 incidents.
The findings reveal clear trends regarding “prior-relationship” homicides. They include the conclusion that 42 percent of these cases involve an assailant who has a personal relationship with an employee of the business where the homicide occurs. Customers are responsible for 31 percent of such killings, current or former employees commit the remaining 27 percent of those offenses.
The statistics regarding the industries within which relevant killings occur show that “nearly all sectors experienced at least one prior-relationship homicide over the study period.” The breakdown of such occurrences among high-incidence categories are:
Additional predictive factors include:
Workers’ Compensation Considerations
Considering the study’s focus on preventative measures that address factors that are prevalent regarding “prior relationship” homicides, it is unsurprising that the article does not discuss workers’ compensation aspects of these killings. The following discussion briefly fills this gap.
These incidents relate to the core workers’ compensation requirement that reimbursing an employee and/or that person’s survivors for an injury requires that that harm “arise out of the course and scope” of the worker’s employment. This element often is not disputed if a customer or a fellow employee with no personal grievance against the slain employee commits the offense. It may be an issue if the assailant acts based on a personal relationship with the slain employee.
An employer may successfully argue that someone’s work lacks an adequate connection with that person’s prior relationship with the assailant to hold the employer liable for workers’ compensation benefits. A related argument is that being at work did not present any greater risk of the assailant killing the employee than the slain person faced at home, while walking down the street, or being any other place.
On the other side of the coin, the slain employee’s survivors may argue that the “intentional tort” exception to the “exclusive remedy” element of the workers’ compensation system applies.
Larson’s Workers’ Compensation Law Ch. 103, which is titled “Intentional Injury by Employer or its Agent,” describes the “intentional tort” exception as follows. “Intentional injury inflicted by the employer in person on an employee may be made the subject of a common-law action for damages on the theory that, in such an action, the employer will not be heard to say that such an intentional act was an ‘accidental’ injury and so under the exclusive provisions of the compensation act.” In simpler terms, applying this exception requires both adequate proof that an employer “intends” that the employee is harmed and the employee sustains the intended injury.
The element of intent relates to the precautions that Gurka discusses. An extreme example is the owner of an all-night wholesale jewelry store in an industrial park that keeps the front door unlocked, has no physical barriers between the employees and the public, has employees work alone, and lacks any exterior lighting or security system.
Under the circumstances described above, the employee’s survivors may be able to assert the intentional tort exception if any assailant kills the employee who is working alone overnight. The employee cannot assert that exception if that person sustains harm, such as a back injury from moving a portable safe, that does not relate to inadequate security measures.
Most mass shootings, whether at a workplace or a movie theater, are largely unpredictable. The best prevention involves reasonable awareness of danger signs and sensible measures to avoid a tragedy.
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