United States: What Can Employers Do to Protect Employees From Workplace Violence?

Originally published Spring 2005

We have all read the news accounts about some disgruntled employee showing up at the workplace and firing on his fellow employees and innocent bystanders. We've even coined a colloquial term for this terrible phenomenon: "going postal."

Today in Colorado and many western states, our gun laws permit citizens to carry concealed weapons. It is not unusual for citizens in the West to have guns in their vehicles. This ready access to weapons makes any casual threat from someone that "I'm going to kill you" or "blow you away" a deadly reality and concern for all employers.

It is important to remember that state and federal constitutional rights allowing citizens to bear arms do not trump a private employer's right to control activities on their premises. In the face of a no-weapons policy, employees do not have a right to bear arms on your private property, even if they have a lawful concealed weapons permit.

So what can employers do to begin to protect their employees from violence in their midst? The first step is to implement and train employees on a violence prevention or disaster preparedness plan. Much like a sexual-harassment-prevention policy, a violence-in-the-workplace policy should contain the following general provisions:

• A statement of zero tolerance against violence and/or threatening behavior in the workplace.
• Measures to screen and limit access to your premises to persons with a legitimate business interest.
• The barring of all weapons on company premises, including those in private vehicles when on company property.
• Establishment of a policy to permit inspection of work areas, including lockers, desks, and any other property on company premises.
• Establishment of a policy permitting the monitoring of telephone conversations, e-mails, and other means of communications in the workplace.
• Encouraging an immediate reporting scheme for any threats of violence.
• Training employees on what to do in case of a threat of violence.
• Coordinating with the company's employee assistance program provider to encourage early intervention and counseling on potential domestic or workplace violence issues.
• Knowing how to immediately contact the local policy authorities and first responders.
• Establishment of a disaster preparedness and evacuation program to react quickly to any violent act or disaster that takes place in the workplace.

In Colorado, there is an additional step that employers can take to prevent workplace violence. Several years ago, the Colorado legislature established a comprehensive scheme for courts to issue "civil protection orders" (C.R.S. § 13-14-102). The legislative declaration states, "the general assembly hereby finds that the issuance and enforcement of protection orders are of paramount importance in the State of Colorado because protection orders promote safety, reduce violence, and prevent serious harm and death."

Specifically relevant to employers is Section 13-14-102(4)(b), which provides that "if the judge or magistrate finds that an imminent danger exists to the employees of a business entity, he or she may issue a civil-protection order in the name of the business for the protection of the employees. An employer shall not be liable for failing to obtain a civil-protection order in the name of the business for the protection of the employees and patrons."

The above passage means that you don't have to wait for the individual employee to seek a protective order. You, as the employer, faced with a threat of violence to your workers or patrons, should have your attorneys at the ready to file a temporary restraining order against the person making the threat. Although we recognize that a piece of paper does not stop a bullet, our experience has also taught us that when someone is served with court restraining order papers-by a uniformed and armed sheriff's deputy-it lets them know that they are being watched and that there are serious consequences attached to their threatening conduct.

Finally, employees in Colorado can take Domestic Violence Leave to seek protection against threatened domestic violence. C.R.S. § 24-34-402.7 requires that employers with 50 or more employees allow an employee up to three working days' leave in any 12-month period, with or without pay, if the employee is the victim of domestic abuse, stalking, sexual assault, or a crime that includes an act of domestic violence. The reasons for leave can include seeking a restraining order, obtaining medical or mental health counseling for his or herself and children, making the home secure, and seeking legal assistance. Requests for leave require advance notice unless there is an imminent danger to the employee. This leave also requires employees to first exhaust vacation, personal, or sick leave. It requires employers to keep the information regarding the leave confidential, and it is unlawful for any employer to interfere with, restrain, deny, or discriminate against an employee who attempts to exercise his or her rights under this statute.

We all hope and trust that no employer has to experience a violent act in the workplace. But we must prepare for such disasters. At Rothgerber Johnson & Lyons, our attorneys are experienced in assisting with and developing workplace violence and disaster preparedness plans. Moreover, we have obtained civil-protection orders for employers that have defused potential crisis situations.

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.