United States: Preventing Workplace Violence - A "Catch-22" for Employers

Last Updated: July 27 2010
Article by Daniel B. Klein and Mark A. Lies II

As the pace and emotional pressures of everyday life impact employees at home and in the workplace, a distressing and tragic trend has been occurring for some time—employees are unable to control their emotions at work, and violence erupts toward managers, co workers, customers or third parties. The unfortunate statistics show that homicide is the number one cause of death for women in the workplace and the third overall cause for men and women. In times of economic uncertainty, particularly as employees face layoffs and corporate reorganizations, the potential for workplace violence cannot be underestimated.

No employer wants such incidents to occur. Ironically, however, as employers attempt to avoid these potential legal liabilities through the creation and enforcement of employment policies, they face a host of federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective "litmus test" for predicting which employee may become violent under particular triggering circumstances, there is no fool proof way to effectively eliminate the hazard. This article will discuss certain factors that should be considered to anticipate and to avoid and respond to this threat, including the potential use of and restrictions on fitness for duty (FFD) evaluations.

CAUSES OF VIOLENCE

While many incidents of workplace violence appear to be random and unpredictable, most commentators agree that such incidents are predictable and result from the interaction of two dynamics:

  • Personal factors: Numerous factors occurring in the employee's personal life (e.g., marital problems, prior history of physical or mental impairment, drug or alcohol abuse, or the same circumstances occurring to a member of the employee's immediate family).
  • Workplace factors: Real or perceived factors occurring in the workplace that simultaneously impact the employee (e.g., potential layoff s or reductions in force; lack of career opportunity; unequal or unfair opportunities for training, compensation, benefits or overtime; or harassment by co workers). Fortunately for our society and the workplace, when these two dynamics collide, most employees are able to control their emotions and somehow deal with their day-to-day side effects. However, because no employee will typically notify the employer unambiguously that he or she is no longer able to maintain an emotional balance when dealing with these dynamics and that a sudden and potentially violent physical or emotional outburst is imminent, the employer cannot conveniently schedule a police, medical, security, or other intervention to prevent such event. In order to have any reasonable chance of predicting and avoiding workplace violence, the employer (through its supervisors) must become more sophisticated in observing, identifying and understanding the signs and symptoms that frequently telegraph that these dynamics are at work and may be about to overwhelm the employee's ability to cope in a rational manner. Once these signs and symptoms are identified, the employer should take action, which may include an FFD evaluation under the appropriate circumstances.

CONFLICTING EMPLOYER DUTIES

Employer obligations. Based upon several different areas of federal and state law, every employer has a legal duty to prevent violence and the underlying behavior that may generate it. Perhaps the most well-known duty arises out of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and parallel state anti discrimination laws, which require an employer to protect its employees against unlawful forms of workplace harassment (e.g., based on sex, race, color, religion, or national origin) that create a hostile or offensive work environment. Frequently, employee violence is triggered by such harassing conduct, which causes the victim (or the victim's spouse or relative) to react to the harasser (and sometimes to innocent co workers or bystanders) with a reflexive anger in the form of verbal outbursts or even physical acts. The same anti-harassment rules apply under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq, and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

Under the Federal Occupational Safety and Health Act (OSHA), 29 U.S.C. § 650 et seq., an employer is required to protect employees against "recognized" workplace safety and health hazards that are likely to cause serious injury or death. OSHA has identified workplace violence as such a hazard, particularly in the health care, retail and taxicab industries. The agency has issued citations with monetary penalties alleging that employers have failed to develop appropriate workplace violence policies. OSHA has also issued guidelines that can be useful in developing such programs (which can be found at its website, www.osha.gov).

In addition to the federal laws and state anti-discrimination and occupational safety laws, most states have also developed liability doctrines under common law (based upon a negligence theory) where an employer may be held liable for the violent acts of an employee if the employer:

  • Negligently hired the employee (e.g., failed to investigate the employee's work history to determine if there was prior violent conduct)
  • Negligently supervised the employee (failed to warn or discipline an employee who engaged in threatening conduct)
  • Negligently trained the employee (failed to provide training to employees regarding prohibited conduct that may have given rise to violence and the consequences of engaging in such conduct)
  • Negligently retained the employee (failed to terminate an employee who engaged in acts or threats of violence)

Employee rights. When employers attempt to aggressively enforce a workplace violence policy, they are frequently confronted by federal and state laws that protect employees against discrimination involving mental or emotional conditions that may constitute legally protected disabilities. Under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and similar state laws, an employer is limited in its ability to screen and reject a potential employee on the suspicion that the individual may become violent because of a mental or emotional impairment. Further, after the employment relationship exists, an employer may have to accommodate a disruptive employee with a mental or emotional disability until such employee engages in conduct which renders the employee "unqualified" to continue to perform the job or which poses a "direct threat" to the safety or health of the employee himself or to other employees. In addition, many state right-to-privacy laws may severely restrict an employer's ability to obtain information about an employee's mental or emotional status and relevant activities outside of the workplace that might be essential in determining whether an employee poses such a risk. For example, many states now have laws that prevent employers from taking adverse job actions against employees for engaging in lawful off-duty conduct or using lawful products (e.g., smoking), or for engaging in off -premises recreational activities outside of working hours.

PREVENTIVE ACTION: WORKPLACE VIOLENCE POLICY

Against this potential liability minefield, an employer should develop an effective written workplace violence prevention policy and should communicate it to all employees to maximize its defense against these potential claims. At a minimum, the workplace violence prevention policy and program should include the following elements:

  • A stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats
  • A statement that the employer has a "zero tolerance" policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct
  • Identify means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner
  • Establish a means to promptly investigate all such threats or violent acts
  • Develop consistent, firm discipline for violations of the policy
  • Provide training to managers and employees to identify signs and symptoms of employee behavior which may predict potential violence (erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures, presence of alcohol, drugs or weapons on the worksite; physical evidence of employee abuse of alcohol or drug use) which should be reported to the employer
  • Establish a team of qualified individuals (e.g., human resources, risk managers, legal, medical, security) either within the company or via readily available third parties, to respond to a potential or actual incident
  • Consider establishing an Employee Assistance Program (EAP) to provide assistance to employees who may be experiencing mental or emotional stress before an act of violence occurs

THREAT ASSESSMENT

In the typical situation, a co worker or supervisor either observes or learns of an employee's questionable, threatening or outright bizarre verbal or physical behavior either within or outside of the workplace, which creates a concern and sometimes a palpable fear that the employee is about to engage in some type of activity that may result in injury to the employee himself (suicide) or to other employees (threats, hostile acts). The frightened or concerned co worker or supervisor brings this information to the employer and asks management to address such problems.

Hopefully, the employer has a written workplace violence prevention policy, and managers have been trained to be receptive to receiving and responding to this disturbing information from employees. An employer cannot ignore these complaints and must promptly investigate them. If not, a tragedy could result. The employer should begin an expedited process to focus on this information and commence the preliminary process of assessing whether the reported threatening or hostile behavior is credible—and, if so, determine what response, if any, is necessary or appropriate. This response may include an FFD evaluation (to be discussed below). Initially, the investigators should have familiarity with employment law, an ability to conduct a competent inquiry to seek the underlying factual information necessary to make an assessment, and—equally important—the ability to maintain confidentiality. The employees who come forward with information should be told that the employer will take all necessary action to protect them against retaliation and that the investigation will be maintained as confidentially as possible, subject to disclosure in a court or administrative proceeding.

CAUTION: A word of caution is in order at this stage before proceeding with this process. Because of the heightened sensitivity in the media to spectacular and tragic workplace violence incidents, many employers feel compelled to engage in a lightning-strike, knee-jerk reaction by immediately terminating or imposing significant discipline upon the questionable employee. Such vigilante-like justice may eventually be found to have no foundation when the subsequent management investigation reveals the proper context in which the conduct or comments occurred, that the conduct or comments were ambiguous or misquoted, or, worse, that the threat complaints made against the employee were fabricated by other employees for an ulterior purpose. If any of those situations turn out to be the case, the potential for employment-related litigation is substantial. The employer, therefore, should proceed cautiously and should conduct a thorough investigation before implementing any permanent employment actions. While the investigation is proceeding, however, the employer may consider whether to temporarily suspend (with or without pay) the employee against whom the complaint has been made. This step should be seriously considered when the threats are specific in nature as to the articulated action (e.g., "I'm going to come in here and shoot the entire mailroom") or directed at specific individuals by name or groups of individuals by description (e.g., "I'm going to kill Jane Doe," or "I'm going to shoot all employees from" a given country or religious group). Removal of the employee during this period will hopefully prevent the occurrence of an incident. The hostile employee should be told not to return to the workplace or to communicate with anyone at the workplace until authorized to do so.

As the investigation continues, and if credible threat information is received, the employer should seriously consider involving the local police authorities at the earliest opportunity. There is a well recognized legal privilege to communicate with law enforcement authorities as long as such communication is truthful and made in good faith. In many instances, the police authorities may launch their own investigation and intervene directly to deal with the hostile employee. During the investigation, the employer should inform the employees involved (particularly the "target" employees) that they are free to contact the police if they believe it is appropriate and that there will be no adverse action for making out a report.

FITNESS FOR DUTY EVALUATION OPTIONS

Once the employer has received information that an employee has engaged or threatened to engage in physical or verbal conduct that has the potential to cause physical or emotional harm to co workers or third parties, the employer must determine the appropriate course of action. Obviously, if the conduct is sufficiently egregious, there are situations where there is no need to consider an FFD evaluation and termination or other severe discipline will be warranted.

The use of an FFD evaluation typically arises where the employee's conduct raises one or both of the following questions:

  • Is the employee mentally and emotionally qualified to continue to perform the essential functions of the job?
  • Does the employee pose a direct threat to the safety of the employee, a co worker or a third party who is related to the employer's business?

The employer who is confronted with these questions has several potential options for obtaining an FFD evaluation, within limitations, under the following laws: the Americans with Disabilities Act, the Family and Medical Leave Act, and federal and state worker's compensation acts. The application, scope and limitations of these laws are in many respects both complementary and conflicting. These laws require careful analysis, and employers, therefore, should consult with counsel before seeking an FFD evaluation.

REACHING A CONCLUSION

Assuming that the investigation identifies credible information of threatening behavior, the employer must timely conclude its investigation and decide on the action to be taken, possibly including:

Verbal warning

Written warning

Extended suspension

Termination

The investigation information should be documented and preserved in the event that litigation arises.

To buttress its decision, the employer may wish to engage a medical health professional who is experienced in threat assessment and qualified to provide forensic testimony. A threat assessment can frequently corroborate the employer's own assessment that the threat is indeed credible. The medical opinion can also undercut a subsequent contention that the employer's assessment was based upon stereotypes of mental or emotional disabilities and an unlawful motivation for an employment decision.

If the employer determines that termination is appropriate and necessary, the employer may wish to seriously consider termination by telephone (confirmed in writing) or by letter. There is no requirement to terminate an employee in person, particularly where the individual may threaten or harm the person who conducts the termination or get loose within the workplace to retaliate against those employees whom the hostile employee suspects to have made the complaints. If the termination is done by letter, the employee should be informed in the letter that the investigation is complete, that it has revealed violations of company policies (identify them) and that the employer must regretfully terminate the employment relationship. The employee should also be told not to return to the premises or to communicate directly or indirectly, with any employees at the workplace. The letter should also identify a contact person at the company for completing any benefit documentation (e.g., COBRA insurance coverage). Finally, the employee should be told that any personal property will be returned to the employee's residence by common carrier.

At the same time that the termination correspondence is being sent to the employee, the employer may also wish to notify the police authorities that the termination is occurring and that additional patrols in the workplace neighborhood would be appreciated. The employer should also consider enhancing worksite security after the termination, including restructuring access to the worksite, changing security access codes, hiring outside security or off-duty police for a short period after the termination to reassure the remaining employees and provide rapid response capability if the terminated employee returns to the site seeking to retaliate.

In sum, the hazard of workplace violence involves numerous potential liability issues under federal and state law. If an employer follows the recommendations set forth above, it can substantially reduce such liability in the event an incident was to occur.

This article was republished from NEHRA's Spring 2010 Insights Magazine

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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