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By: Elizabeth Harlan, Astrachan Gunst Thomas, P.C.
According to the Occupational Safety and Health Administration (OSHA), approximately two million workers a year are affected by some form of workplace violence. The National Crime Victimization Survey reports more than a million workdays are lost each year as a result of workplace assaults. Employers are subject to multimillion dollar judgments when incidents take place on their watch, especially if they are aware of threats and fail to act.
THE RESPONSIBILITY TO DESIGN AND IMPLEMENT POLICIES and practices that address and deter workplace violence often falls on general counsel or human resource professionals. While there is certainly no one-size-fits-all approach to these issues, this article provides practical suggestions to those professionals who are undertaking the task of crafting and implementing a proactive zero-tolerance approach to workplace violence.
The type of workplace violence most people immediately think of—active shooter homicides—is devastating to an employer, its employees and their families, its clients, and even to an industry. In 2015 (the most recent year for which statistics are reported by the U.S. Bureau of Labor Statistics) there were 417 workplace homicides in the United States. This represents a 2% increase in workplace homicides from 2014 and a 15% increase in workplace shootings. Active shooter incidents are becoming more common and deserve significant attention from every employer, but it is also important to understand that the concept of workplace violence encompasses much more than homicides.
Private companies adopt their own definitions of workplace violence. If your company does not already use a particular definition, or it wants to reconsider that definition, there are several examples of conduct rules and workplace violence policies available on the internet that can be used as a starting point.
OSHA defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.” Importantly, this definition includes verbal threats and intimidation—not just physical violence and threats of physical violence.
The National Institute for Occupational Safety and Health defines workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.” This is a much narrower definition.
State regulators also vary in their definitions. For example, Maryland Occupational Safety and Health (Maryland’s state OSHA entity) employs a much broader definition. It defines workplace violence as “a wide range of acts that include all violent behaviors and threats of violence, as well as any conduct that can result in injury, property damage, induce a sense of fear, or otherwise impede the normal course of work.”
Before adopting a definition, think carefully about what behavior your company is willing to consistently police—from the top down. If you are not willing to enforce the definition as applied to your senior vice presidents or your chief executive officer, do not adopt it. Disparate treatment under the policy will destroy its efficacy and could lead to lawsuits.
Types of violence that you may want to include within the scope of a workplace violence policy include:
Adopting a broad (but not too broad) definition for workplace violence is important because a consistently enforced policy can help nip bigger problems in the bud. For example, actively addressing threatening language may stave off a future physical attack, and a broad zero-tolerance policy can provide a viable mechanism for discussing and stopping intimidating, abusive verbal behavior in the workplace. This effort can be central to retaining talent. Because current employment laws within the United States do not address workplace bullying, unlike the laws of many other countries, an employer’s workplace violence policy or conduct rules may provide the only clear pathway by which an employer or an employee can approach and proactively address verbally abusive, intimidating, or manipulative behaviors.
There are four categories of workplace violence that are typically recognized:
Special attention is placed here on intimate partner violence and employee-on-employee violence, as these are two types of violence that exhibit recognizable warning signs within the workplace.
Intimate Partner Violence
Intimate partner violence encompasses any violence by an intimate partner (husband, wife, former boyfriend, etc.) that makes its way into the workplace. The Centers for Disease Control reports that one in every four women and one in every ten men will experience domestic violence in their lifetime. That violence does not stay within the confines of the home. When a battered woman leaves her husband, for example, the husband may not know her new address, but he might know where she works. A 1998 study by the Family Violence Prevention Fund determined that 74% of employed battered women are harassed at work. The U.S. Bureau of Labor Statistics reports that in 2015, 43% of women employees killed in the workplace were killed by an intimate partner—as compared to only 2% of men
An employer can make all the difference for someone facing domestic violence. Be attentive and aware. Here are some signs that could suggest that one of your employees may be experiencing abuse:
If you see these types of signs, or for any other reason suspect an employee is suffering abuse, reach out to the person. Often victims of domestic violence want someone to notice. Instead, people often decide the situation is none of their business or that it is best not to get involved. If the suspected abuse is affecting the employee’s work, that is a perfect reason to open a dialogue. If the person denies the abuse, let him or her know that your door remains open.
Determine who the local service providers are for domestic violence so that you are ready to provide a resource when this type of conversation arises.
If the employee embraces your offer to help, here are some ideas that can help keep the employee safe at work:
Intimate partner violence in the workplace has resulted in an untold number of lawsuits against employers. For example, when an Old Navy employee was shot and killed at work by her boyfriend in Chicago, Old Navy was sued on a premises liability theory for not providing sufficient security measures. Later, the complaint was amended to include allegations that the store manager knew the boyfriend had threatened the employee and did nothing about it.
In another suit, Gantt v. Security, USA, Inc., 356 F.3d 547 (4th Cir. 2004), Dominique Gantt, a security guard, sued her employer in federal court in Maryland, asserting claims for intentional infliction of emotional distress and sexual harassment arising out of the employer’s alleged failure to protect her from a sexual assault in the workplace.
Gantt secured a protective order against her former boyfriend that prohibited him from calling her at work and stated that she should not be stationed at outside posts where she would be vulnerable to attack. She brought a copy of the protective order to her supervisor. Despite the clear mandates of the protective order, the supervisor repeatedly put calls through to Gantt from the ex-boyfriend. This same supervisor also stationed Gantt at an outside post, from which Gantt was abducted and raped by the ex-boyfriend.
The employer argued that Maryland’s workers’ compensation statute provided the only remedy for Gantt’s injuries. The trial court granted the employer’s motion for summary judgment. The U.S. Court of Appeals for the Fourth Circuit rejected that contention, determining that at least a portion of the factual scenario fell within the “deliberate intent to injure” exception to workers’ compensation exclusivity. Accordingly, Gantt was permitted to pursue a claim for damages against her employer. A jury awarded her $2.25 million after one day of deliberation.
Be aware of intimate partner violence in the workplace and do what you can to protect your employees.
According to the U.S. Secret Service, perpetrators of violence often choose a target in advance and make threats, not to the target, but to third parties. This phenomenon is central to prevention efforts. Employees must be trained to understand that when they hear threats, which most often will not be directed at them, they need to report the threats to a designated person. These types of communications cannot be ignored, as they may be the best chance to save a life.
The following are behaviors to look for in your employees or coworkers that often serve as warning signs for future violent behavior:
Train your employees to be conscious of the fact that people tend to ignore warning signs because they do not want to get involved or they think it is none of their business. Create an environment in which employees know to whom they should report their concerns and feel free to do so. Establishing this sort of culture requires complete buy-in from top management. This means that members of top management should be present at trainings and should stress to all employees that reporting threats of violent behavior is encouraged and expected and will not result in any sort of retaliation by the employer.
If warnings are conveyed to the appropriate people in a timely manner, both liability and harm may be avoided. For example, in Raymond DuPont v. Aavid Thermal Technologies, Inc., 147 N.H. 706 (2002), one employee, Robert Hilliard, shot and killed another employee, Raymond DuPont, and then shot himself. The warning signs were ignored. It was alleged that one coworker knew Hilliard was addicted to pain medication, was violent and aggressive, and had threatened DuPont, and a second employee knew Hilliard was abusing pain medication, was coming to work to confront DuPont, and was armed. Neither of these employees reported this information to anyone. When Hilliard appeared at work on his day off, two supervisors watched him accuse DuPont of having an affair with his girlfriend. Instead of calling security, the supervisors asked the two men to step outside. At that point, one of the coworkers finally informed a supervisor about the loaded handgun Hilliard was carrying. With that knowledge, the supervisors asked DuPont to return to work, but when Hilliard asked for a few more minutes outside with DuPont, the supervisors allowed it. Hilliard then shot DuPont and himself.
A New Hampshire court determined that the employer had a duty to protect DuPont because of the conduct of its supervisors. Relying on the Restatement (Second) of Torts, the court reasoned that an employer has a duty to protect an employee who, while acting within the scope of employment, comes into a position of imminent danger of serious harm and this is known to the employer or a person who has management duties. The employer failed to exercise reasonable care to avert the threatened harm, the court found.
Rather than turning a blind eye to threatening behavior and claiming ignorance if an incident occurs, the better course of action is to proactively encourage reporting, create a plan to protect your employees, and promptly address safety concerns.
Here are some suggestions for putting a zero-tolerance workplace violence plan in place.
Create a Threat Assessment Team
No single person should be tasked with coming up with a definition of workplace violence, evaluating the workplace, and making all of the decisions necessary to keep employees safe. Instead, whenever possible, a team should be consulted. That team should ideally include:
The threat assessment team should participate in an initial evaluation of the workplace for safety concerns (discussed below), meet periodically to update any evacuation plan and ensure that contact lists are current, and when time and circumstances permit, meet to discuss the best steps to take in response to individual instances of workplace violence.
Conduct a Worksite Analysis
It is a good idea to develop a relationship with local police and fire departments. Some departments will come to a workplace and conduct a free safety analysis. Invite local police and fire personnel to your company picnic, make them feel like part of your team, and cultivate real ties to these first responders. If you have multiple buildings, be sure the police and fire department personnel know the name and location for each building. During the 2013 Navy Yard shooting in Washington, D.C., precious time was lost while first responders tried to locate Building 197.
State and federal OSHA may also be willing to analyze the safety of your workplace. Reach out to them and ask. Private security companies can also be hired to conduct an analysis.
A physical analysis of a worksite will typically involve a review of issues such as who can access which parts of the building and how (security cards, codes, scans, etc.), whether portions of the building can be locked down, whether there is adequate lighting, whether individuals are protected when they work alone, the need for alarms and panic buttons, ideal hiding places in the event of an active shooter, and alternative exits, just to name a few.
An evacuation plan should be created, with rendezvous points and designated people to make sure everyone has arrived. When practicing for an active shooter scenario, employees should be instructed to silence their cell phones.
The threat assessment team should maintain a current contact list with phone numbers and names for each employee—such as a spouse or a good friend who can be called if something happens to an employee.
Once an evacuation plan is designed, practice it periodically without warning
One point to keep in mind is that many people cannot recognize the sound of gunfire. Think about creative ways to address this concern, such as inviting a police officer to describe the sound or play a recording.
Create a Documentation System
The threat assessment team should designate someone to maintain records related to workplace violence. Among the items to include are:
It is imperative that all managers and employees attend trainings related to recognizing the warning signs for intimate partner violence and employee-on-employee violence. Only with the full support of management will employees feel safe to report their concerns. General safety training, directed at preventing clients, customers, or strangers from harming employees is also very useful. For example, if certain doors to the outside are repeatedly propped open while people smoke, that creates a vulnerability that endangers everyone. Training can highlight the dangers of such conduct. Trainings can also incorporate visits from the local police or fire departments and provide a time to run evacuation drills.
As part of the training, make sure that everyone knows where the closest hospital or emergency room is located and that everyone has a phone number for every other employee and the best number for first responders. In addition, everyone should understand the capabilities of your phone system when the internet is down or power has been disconnected. Can you still dial 911? How?
It is also a good idea to locate counselors who are trained to provide aftercare for all employees who want it. It is best to be ready rather than searching for counselors in the aftermath of a tragic or frightening workplace event.
Screen Applicants for Violent Behavior
Screenings must be done in accordance with federal, state, and local law, but they typically can be performed after a first interview has been conducted and a contingent offer has been made. In each instance, an individualized assessment should be conducted that considers the job duties the person will perform and, where applicable, the offense the applicant committed, when that offense was committed, and any potential inaccuracies in the criminal history. An employer must be consistent about how it relies upon the information gathered. While background checks must be performed carefully, they are one of the best procedures an employer can utilize to predict future behavior and can help avoid a negligent hiring claim.
Create a Forum for Complaints
Workplace violence often arises when individuals do not believe they are being heard. One way to help avoid an escalation of frustration is by providing a regular forum for employees to voice complaints and concerns. This could be a monthly or quarterly meeting or an open door policy
Be Mindful of Stressors
The threat assessment team needs to always remain aware of stressors on the workforce. Layoffs, mergers, increased or decreased workloads, new management, a sale of the company, or even new technology can create stress that may well set someone off. Be aware and be ready to discuss these issues with employees. If you need extra security, be ready to hire a security company.
Adopt a Written Zero-Tolerance Workplace Violence Policy and Enforce It
The threat assessment team, in conjunction with outside counsel if necessary, should carefully consider the types of workplace violence that the employer will not tolerate. Zerotolerance does not mean that every person who runs afoul of the policy must be fired, but it does mean that every instance of workplace violence must be documented and investigated. As mentioned above, be sure to adopt a description of workplace violence that your company can and will consistently enforce. For example, if your company is not going to investigate every instance of verbal abuse by a member of management, think carefully about including language such as “verbal abuse including offensive, profane, and vulgar language.”
Policy language should encourage reporting, should identify to whom reports should be made, and should make clear that no retaliation for reporting violations will be tolerated.
Once a written zero-tolerance workplace violence policy is in place, enforce it. Investigate complaints and be consistent about discipline. If someone threatens violence, assemble the threat assessment team, if there is time, to discuss whether to terminate the individual or place him or her on leave. Keep in mind that the more time that passes between the threat and the employer’s response, the more questions can be raised about pretextual reasons for any decision that is made. Be decisive, but not hasty. The advice of counsel is generally recommended when termination is being considered.
One issue that may arise repeatedly is the effect of the Americans with Disabilities Act (ADA) on the ability to discipline or terminate employees under the policy. If the individual who violated the workplace violence policy is covered by the protections of the ADA, one question that may arise is whether the behavior for which he or she is being disciplined is caused by that disability. For example, if the person is blind and is being disciplined for threatening to kill a coworker, the behavior most likely is not caused by the disability. That person should receive whatever discipline any other employee would receive. On the other hand, if the employee has Tourette Syndrome and yells out threatening words to coworkers and customers, the question becomes whether the conduct at issue—verbally threatening coworkers or customers—is jobrelated and consistent with business necessity and whether other employees are held to the same standard.
The various subtleties of how courts have interpreted the ADA are beyond the scope of this article, but generally speaking, the Equal Employment Opportunity Commission has maintained that “certain conduct standards that exist in all workplaces and cover all types of jobs will always meet” the “job-related and consistent with business necessity” standard “such as prohibitions on violence, threats of violence, stealing, or destruction of property.” There is also relatively consistent agreement among courts that workplace violence rules can be enforced without violating the ADA.
The question gets a bit trickier if the employee has not threatened violence but has violated the policy in another manner, such as swearing at someone in the workplace. Generally speaking, if the behavior interferes with the ability of the person or others to perform an important aspect of their job, discipline of some sort or an accommodation that helps keep the situation from reoccurring may be in order
Keep in mind that it is much simpler for an employer to terminate an employee for violating a workplace violence policy than to rely on a direct threat theory available under the ADA. Again, the details of the direct threat theory go beyond the scope of this article, but suffice it to say that to prevail on a direct threat theory, the employer must conduct an individualized assessment of the employee’s ability to safely perform the essential functions of the job. That assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. Rather than engaging in a medical examination and relying on the experts necessary to establish a direct threat, it is simpler to adopt a zero-tolerance workplace violence policy and consistently enforce it.
When investigating violations of a workplace violence policy, be mindful not to make public statements that could be construed as defamatory or that place an employee in a false light. Also consider your state’s privacy laws. If you are reviewing an employee’s work email as part of an investigation, be sure that you have a policy in place that clearly informs the employee that he or she has no expectation of privacy in any email sent or received using the employer’s email address, electronic equipment, or server. This will help avoid an intrusion-uponseclusion claim.
There are few policies an employer can adopt that are more useful than a workplace violence policy. Go forth. Be proactive. Get a plan in place before something happens, practice it, and keep all relevant information up to date. Your time and effort will help avoid lawsuits and multimillion dollar judgments, but more importantly, it may save lives.
Elizabeth Harlan is a principal at Astrachan Gunst Thomas, P.C. in Baltimore, Maryland. Her practice includes advising creative businesses such as advertising agencies, computer software companies, cybersecurity companies, and architectural firms on employment matters. She also litigates cases in federal and state court.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Labor & Employment > Employment Policies > Safety and Health > Articles
For a discussion of issues related to workplace bullying, see
> COMBATING BULLYING IN THE WORKPLACE
RESEARCH PATH: Labor & Employment > Workplace Safety and Health > Policies and Procedures > Practice Notes
For advice on drafting a workplace violence policy, see
> DRAFTING WORKPLACE VIOLENCE POLICIES
For an example of a policy against workplace violence, see
> WORKPLACE VIOLENCE POLICY
RESEARCH PATH: Labor & Employment > Workplace Safety and Health > Policies and Procedures > Forms