In the midst of the worst economy since the Great Depression and with unemployment hovering around 10 percent, workplace violence may escalate, management attorney Matthew Nelson of Dinsmore & Shohl says in this BNA Insights article. Nelson discusses trends in workplace violence, government agency responses, and the possibility of employer liability under the doctrine of respondeat superior and theories such as negligent hiring, supervision, and retention. He emphasizes employer awareness of employee behavior and offers guidance on policies to limit liability.
Roughly 15 years ago, the federal Centers for Disease Control declared workplace violence a "serious public health problem." Since then, several federal agencies have attempted to either define or track workplace violence, and countless articles have been written about the topic. In recent years, almost certainly as a result of greater prevention efforts on the part of employers, incidents of workplace violence—in particular, workplace homicides—have trended downward. Nonetheless, in the midst of what is generally considered the worst economy since the Great Depression, and with unemployment hovering at just under 10 percent, it is quite possible that the downward trend will be reversed, or at the very least, arrested. Employers should review and update their workplace violence policies and procedures. As the adage goes, an ounce of prevention is worth a pound of cure.
Workplace Violence Defined
As an initial matter, "workplace violence" is not specifically defined by any federal statute or regulation. Consequently, "workplace violence" can be an amorphous concept, and what exactly falls within the purview of workplace violence is often the subject of debate. Nonetheless, the National Institute of Occupational Safety and Health (NIOSH) offers a comprehensive working definition. According to NIOSH, workplace violence is simply any physical assault, threatening behavior, or verbal abuse occurring in the work setting.
Obviously, NIOSH's definition is fairly broad. It covers traditional forms of physical violence and more recently recognized forms of violence, such as psychological harassment. For example, under NIOSH's working definition, workplace violence includes beatings, stabbings, shootings, and rapes, along with psychological traumas such as threats, obscene phone calls, an intimidating presence, and harassment. NIOSH even includes suicides and attempted or "near" suicides as types of workplace violence.
History and Trends
Whether justified or not, workplace violence has sometimes been associated with the U.S. Postal Service. The phrase "going postal" entered the public lexicon sometime after the 1986 Edmond, Okla., postal massacre, in which postal worker Patrick Sherill shot and killed 14 of his co-workers and wounded six others before ultimately turning the gun on himself. This tragedy was followed by more postal worker murders in 1991, 1993, and 2006. All told, more than 40 postal employees have either been killed or wounded in the past three decades.
The problem, of course, is not limited to the Postal Service. According to both the Department of Justice (DOJ) and the Occupational Safety and Health Administration (OSHA), between 1.7 million and 2 million workers are victims of workplace violence each year. Indeed, according to the DOJ, workplace violence was responsible for roughly 18 percent of all violent crime between 1993 and 1999 (the most recent year for which the DOJ investigated the matter). Predictably, the DOJ's study revealed that police officers were the most frequent victims of workplace violence. Perhaps less obviously, the study also showed that retail sales employees (such as convenience store, gas station, and bar employees), and transportation employees (specifically, bus and taxi drivers), also were exposed to workplace violence at a fairly high rate.
Fortunately, incidents of workplace violence have steadily declined over the past decade. A 2008 study by the National Council on Compensation Insurance Inc. found that while annual rates of workplace assaults were "volatile" and "erratic," they nonetheless decreased by between 35 percent and 41 percent since 1992. Unfortunately, the study was based upon 2006 data, and, therefore, did not consider the possible impact of the recent economic slump. Nonetheless, the data shows that increased efforts on the part of employers over the past two decades have been effective in significantly reducing workplace violence.
The downward trend in incidents of workplace violence continued as recently as 2008. According to the Labor Department's Bureau of Labor Statistics (BLS), there were 16,330 cases of nonfatal workplace assaults and other violent acts that required lost time away from work in 2008. This figure accounted for only 1.5 percent of all nonfatal workplace illnesses and injuries. Stated differently, just under 99 percent all nonfatal lost time injuries were the result of something other than workplace violence.
Less common, but infinitely more disturbing and publicized, are workplace homicides. Once again, the BLS reported that workplace homicides have likewise declined over the past decade. According to BLS, there were 517 workplace homicides in 2008 (the most recent year for which data was available). This represented an 18 percent decline from the prior year. Overall, the BLS found that incidents of workplace homicide had decreased by an astonishing 51 percent from the 1994 high watermark.
Nonetheless, workplace homicides were still among the four leading causes of workplace fatalities overall. Surprisingly, although men held the dubious numerical edge over women by a substantial margin—4,827 men were victims of workplace homicide as opposed to only 387 women—workplace homicides were still the leading cause of death for women in the workplace. It is also worth noting that workplace suicides did not follow the same downward trend. In fact, in 2008 there were 263 case of workplace suicides, the highest number ever recorded by the BLS.
Once again, data for the past two years, which include the current economic slump, is not yet available. Thus, it remains to be seen whether the downward trend will continue, or whether stress induced by economic uncertainty will cause an uptick—perhaps dramatically—in workplace violence.
Legal Obligations and the Right to a Safe Workplace
Currently, there are no federal laws expressly prohibiting or even regulating workplace violence. Nonetheless, several commentators have cited the Occupational Safety and Health Act's "general duty clause." Under the general duty clause, each employer is obligated to furnish "a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." (emphasis added). The purpose of the general duty clause was to ensure that OSHA had the power to protect workers from recognized but unregulated hazards. It was not, as the noted in the Senate Report accompanying the Occupational Safety and Health Act, meant to be a general substitute for reliance on properly issued regulatory standards. S.Rep. No. 91-1282, at 5186 (1970).
Currently, there are no OSHA regulations or standards concerning workplace violence. In recent years, however, the agency has recognized that workplace violence is a serious safety and health issue. For example, OSHA has issued several voluntary guidelines and recommendations for employers concerning methods of reducing or eliminating workplace violence, and at least one court has emphasized that OSHA devotes a section of its website to workplace violence.
Indeed, OSHA has previously relied upon the general duties clause to issue citations for workplace violence. For example, in Secretary of Labor v. Megawatt Financial, Inc. 17 OSH Cases 1337 (1995) (see also John J. Coleman, III and Amy K. Jordan, The Legal Challenges of Workplace Violence , American Bar Association, Labor and Employment Law Section, Occupational Safety and Health Committee, Mid-Winter Meeting (March 7-10, 2006)), OSHA issued a citation to the landlords of an apartment complex for failing to furnish a workplace free of a "serious recognized hazard of violence in that security measures were not taken to minimize the risk or eliminate exposure to assault and battery by tenants of the apartment complex." The citation was ultimately vacated because the particular hazard wasn't generally recognized within the industry. Presumably, had the particular danger been one that was recognized within the industry, the citation would have been enforced.
Few if any courts have directly addressed the application of the general duty clause to workplace violence issues. Perhaps the closest a court came to doing so was the U.S. Court of Appeals for the Tenth Circuit's recent decision in Ramsey Winch Inc. v. Henry, 555 F.3d 1199 (10th Cir. 2009); 32 DLR AA-1, 2/20/09.. In Ramsey, the court addressed whether an Oklahoma law that allowed employees to carry weapons to work conflicted with the general duty clause, and was, therefore, preempted. There, the employer sought to prohibit employees from carrying weapons at work. The district court found that Oklahoma's statute placed employers in the impossible position of allowing employees to carry weapons so as to comply with state law, while at the same time being subject to OSHA's general duty clause requiring them to provide a safe workplace. Accordingly, the district court found that the general duty clause preempted state law.
In reaching its decision, the district court noted that "the general duty clause clearly places the onus on the employer to prevent hazards that could lead to death and serious bodily harm, even when such hazards are not covered by specific OSH Act regulations, when the employer is not responsible for creating the hazard, and when the employer is not in the best position to abate the hazard." That is, the district court recognized that the general duty clause does in fact require employers to provide a workplace free from the possibility of workplace violence. Under the district court's rationale, an employer could in fact be liable under the general duty clause for incidents of workplace violence—or at least for those incidents that occurred as the result of employees bringing weapons to work.
On appeal, however, the Tenth Circuit reversed the district court. Pertinently, at least for purposes of this article, the court noted that OSHA does not have any standards—including the general duty clause—relating to workplace violence. That is, federal preemption could be found only if gun-related workplace violence was a "recognized" hazard. Because nothing in OSHA's regulations indicate that gun-related workplace violence is indeed a recognized hazard, the general duty clause was not applicable; the Oklahoma statute did not conflict with the general duty clause and was, therefore, not preempted. Thus, while the Tenth Circuit did not directly address whether the general duty clause proscribed workplace violence, the court effectively refused to extend the general duty clause beyond the boundaries of recognized hazards.
Employer Liability for Workplace Violence
Although no single federal law directly proscribes workplace violence, a host of common law duties and obligations effectively fill the void. Most notably, employers may be vicariously liable for the acts of their employees under the traditional doctrine of respondeat superior, or directly liable under more recent theories of liability, such as negligent hiring, supervision, and retention.
First, employers may be vicariously responsible for incidents of workplace violence if the violent act was committed by an employee in the course and scope of employment. Vicarious liability, or respondeat superior, does not consider the actions of the employee, only whether the employee's actions were within the scope of employment. Obviously, whether an action falls within the scope of employment depends upon the particular circumstances. Traditionally, courts viewed intentional wrongdoings as falling outside the scope of employment boundary. Thus, employers were not vicariously liable for the intentionally committed torts of their employees—such as battery and assault. Nonetheless, courts have found that intentional actions that otherwise fall outside the scope of employment still may give rise to vicarious liability if the actions somehow arose out of employment.
Even where an employee's violent actions are outside the scope of employment, employers may still be liable under a more modern theory of negligent hiring, supervision, or retention. The elements of such claims vary depending upon the states, but the general theory is that employers owe a duty to protect third persons — generally other employees — from the violent acts of employees, if the violent acts were foreseeable. Unlike respondeat superior, the negligent hiring, supervision, and retention theories are forms of directly holding employers liable for workplace violence. That is, the focus is not on the scope of the employee's action, but rather on whether such actions were reasonably foreseeable, and whether the employer would have discovered (and thus prevented) the employee's propensity for violence through the exercise of reasonable care. It is for these reasons that background checks are now an essential element of the hiring process.
Workplace Violence and the ADA
Employers must also be aware of the relationship between Americans with Disabilities Act (ADA) and workplace conduct rules. In general, the ADA, as recently expanded by the ADA Amendments Act, prohibits discrimination on the basis of a disability (whether actual or perceived) or a record of disability. The obvious question, then, is whether an employer may enforce its misconduct rules—such as its workplace violence policy—when the misconduct itself was the result of an employee's disability.
The ADA contains a "direct threat" exception, and both the Equal Employment Opportunity Commission (EEOC) and the courts generally have taken the position that employers are almost always entitled to enforce workplace violence policies, so long as the policies are enforced uniformly. For example, the EEOC has stated that "[n]othing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence." Enforcement Guidance No. 915.002. More recently, the EEOC noted 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. EEOC Fact Sheet "Applying Performance and Conduct Standards to Employees with Disabilities" (2008).
Nonetheless, at least one court has found that taking an adverse action against a current employee for past conduct related to a disability may violate the ADA. In Josephs v. Pacific Bell, 443 F. 3d 1050 (9th Cir. 2006); 1 DLR A-1, 1/3/06, the U.S. Court of Appeals for the Ninth Circuit found that an employer had violated the ADA by refusing to rehire a former employee based upon the former employee's history of violence. There, the plaintiff, Joshua Josephs, was hired by Pacific Bell as a service technician. More than a decade before being hired by PacBell, Josephs had been convicted of misdemeanor battery against a police officer and was found not guilty of attempted murder by reason of insanity. Josephs spent two years in a mental institution as a result of the plea. PacBell ultimately learned of these incidents while performing a routine background check, and Josephs was fired.
Josephs then brought suit against PacBell, alleging that the termination and PacBell's subsequent refusal to reinstate him was unlawful. Importantly, in the interim Josephs' misdemeanor charge was expunged. A jury ultimately found that the termination was lawful, but PacBell's failure to reinstate Josephs once the misdemeanor charge had been expunged violated the ADA.
On appeal, the Ninth Circuit affirmed. The court first noted that PacBell regarded Josephs as disabled for purposes of the ADA. The court then found that the jury was not unreasonable in finding that Josephs was qualified to work as a service technician—even though the position required him to work unsupervised in the homes of PacBell's customers—and that PacBell's fears to the contrary were unreasonable. Thus, the jury's verdict that PacBell discriminated against Josephs based on the perception of a mental disability was upheld.
It should be noted that PacBell failed to show that it had a written policy prohibiting employment of persons who had committed violent acts. Moreover, PacBell had apparently reinstated other employees whose felonies had been expunged. Thus, other employees were assessed based upon the danger they posed at the present, whereas Josephs was assessed based upon past transgressions, with no evidence that he posed a present danger.
Ultimately, the Ninth Circuit's decision was based upon the unique facts before it. Nonetheless, the decision serves as a reminder of the consequences of failure to uniformly apply employment policies, even in the context of workplace violence. Because it had previously allowed others to work despite past histories of violence, PacBell was liable for failing to do so where the employee was regarded as mentally disabled. Importantly, PacBell legitimately believed that Josephs posed a direct threat to the safety of either himself or others. Thus, the company was left to choose between a possible negligent hiring or retention claim on one hand, and an ADA discrimination claim on the other—not to mention the moral issues of employing someone who may one day harm others.
Recognizing Signs of Violence
Even the most thorough, well-written, and uniformly enforced workplace violence policies cannot guarantee workplace safety. Whether an employee will commit violent acts is ultimately in the employee's hands. There are however, certain activities and behaviors of which an employer should be aware.
For starters, NIOSH lists the following situations as risk factors for workplace violence: contact with the public; exchange of money; delivery of passengers, goods, or services; having a mobile workplace; working with unstable or volatile persons in health care; working alone or in small numbers; working late at night or early in the morning; working in high-crime areas; guarding valuable property; and working in community-based settings.
As for indications that an employee might commit a violent act, the National Institute for Prevention of Workplace Violence lists 13 signs to look for. Specifically, employers should look for employees: making threats; acting unreasonably; intimidating or controlling other employees; exhibiting paranoid behavior; acting irresponsibly; exhibiting angry or aggressive behavior; showing a fascination with or acceptance of violence; holding grudges; exhibiting generally bizarre behavior; exhibiting signs of depression; demonstrating obsessions; demonstrating signs of substance abuse; and, demonstrating signs of desperation.
But recognizing violent tendencies is only part of the equation. Employers must then enforce their updated workplace violence policies. Again, these policies should be applied uniformly, and should be based upon an objective analysis of the employee's present tendencies to commit a violent act.
Adopting an Anti-Violence Policy
Effective anti-violence policies should be drafted with an eye towards a particular employer's circumstances and concerns. Nonetheless, there are certain principles that should generally be included in all policies.
For example, the policy should clearly establish that violence will not be tolerated in any form from anyone, and it should provide a nonexhaustive list of violent acts.
The policy should explain that prohibition on violence is not limited to violence between employees or to physical confrontations. Violence can, and often does, occur between customers, clients, patients, or guests, and often takes the form of verbal threats or harassment.
The anti-violence policy must also have teeth. The policy should plainly state that employees who engage in workplace violence are subject to discipline, up to and including termination, and that the necessary law enforcement agencies may be contacted. If a customer, client, patient, or guest is responsible for the violence, he or she should be prohibited from future dealings with the company.
Most importantly, the policy should establish a convenient method of reporting any examples of violence, and promise that all reports will be taken seriously and promptly investigated. Employees are often reluctant to "snitch" on fellow employees, so the policy should also provide a confidential means of making good faith complaints.
Matthew Nelson is a member of Dinsmore & Shohl's Morgantown, W.Va., labor and employment department. Matt maintains a diverse employment litigation practice and represents a wide variety of employers in both state and federal courts.
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