|
Everyday, American workers are threatened, assaulted and injured in the course of their employment. The National Crime Victimization Survey, a weighted annual survey, estimates that two million people are victims of non-fatal injuries due to violence while they are at work. The number of fatalities is equally staggering, with the Bureau of Labor Statistics recording 645 workplace homicides in the United States in 1999. The financial exposure associated with an incident involving workplace violence is extremely high. Costly litigation, lost productivity, and damage control, as the result of workplace violence, has exploded past $36 billion, according to the Workplace Violence Research Institute.
EMPLOYER LIABILITY FOR WORKPLACE VIOLENCE
Common Law Duties
Employers are expected to provide a safe working environment, warn of dangerous conditions, and cure known hazards. If an employer breaches these duties, it may be held liable for substantial monetary damages and punitive damages, as provided for under applicable state law. In addition, an employer can be held liable for damages to injured individuals for negligence, if the employer breaches its duty to use reasonable care to prevent foreseeable risk of injury to others.
Negligent Hiring and Negligent Retention
Negligent hiring is placing a person with known dangerous tendencies in a job where it is foreseeable that the new hire poses a threat of injury to others. This theory goes beyond "known" tendencies to include tendencies that should have been discovered by reasonable investigation. Acts of the employee in these cases do not have to be within the scope of employment. Negligent hiring claims have become especially problematic given the "no comment" reference policies adopted by many employers. Negligent retention is the breach of an employer's duty to be aware of an employee's unfitness and to take corrective action through retraining, reassignment or discharge.
IDENTIFYING RISK FACTORS
What should an employer look for? Research of over 200 incidents of workplace violence revealed that, in each case, the suspect exhibited several identifying risk factors that indicated a propensity for violence such as:
- 1. History of violent behavior, family violence,
- 2. Fascination with guns or other weapons and discussion of them at work,
- 3. Direct or veiled threats,
- 4. Personal or family problem,
- 5. Significant changes in behavior such as: deterioration of work performance, substance abuse or alcohol abuse, being a loner; or, anger and frustrations without an outlet to vent them.
Briefing employees in identifying the above risk factors and giving them instructions on how to report such information is critical in assisting the employer to address potentially dangerous situations.
REDUCING EMPLOYER LIABILITY
Employers are often in a difficult position when it comes to responding appropriately to workplace violence. They must avoid over-reacting, under-reacting, or reacting in a way that exacerbates the problem. Taking the following action steps can help reduce the likelihood of workplace violence incidents:
- 1. Screen applicants adequately to identify potentially high-risk employees. Clearly warn all applicants that the company conducts a thorough background investigation of all new employees and requires a signed waiver to allow the company access to appropriate records.
- 2. Train employees to identify warning signs of a potentially dangerous employee.
- 3. Enact company policies that facilitate employee comfort in reporting and timely management response to employee reports of threatening behaviors.
- 4. Take prompt action to respond to allegations of threats of violent conduct. Establish threat management procedures including a team-oriented plan of action.
IMPLEMENTING A PREVENTION PLAN
Implementing a plan of action is a relatively simple, proactive approach to dealing with workplace violence. Companies often have action plans in place for fire or weather emergencies but not for response to acts of aggression in the workplace. For most businesses, a workplace violence prevention program consists of two elements: maintaining a physically safe place for employees to work and developing a coherent plan to manage disruptive employees or customers.
- A. Develop a planning committee or response team. The committee should be comprised of representatives from various departments who can assess and manage a threatening situation, should it ever occur. This team should consist of individuals from: Human Resources, to collect background information from management, co-workers, and employment records; Security, to handle site security and to mobilize community law enforcement resources; Medical, to provide psychological evaluation of the threatening person to help assess the risk of violence and to assist if injuries occur; and Legal, to provide advice on how to manage the violence risk within legal constraints. Incident investigation and post-incident analysis by the committee is critical to review how well the incident was handled and how it could be prevented in the future.
- B. Risk assessment. A look at the risk the company has should include an assessment of past experience, neighborhood crime patterns, industry experience, specific job exposures, and work environment. A company may analyze the benefit of hiring security firms that specialize in preventing workplace violence. Retail industry employers find the most effective way to prevent robbery is to make the establishment unattractive to the perpetrator with changes such as appropriate lighting, restricted access to money, or the installation of a monitoring device.
- C. Construct a written prevention policy. Establish a zero tolerance policy addressing threatening or harassing behavior. Zero-tolerance means simply that threats and physical violence at work are unacceptable. Consistent enforcement is as important as having a zero-tolerance policy. Such a policy will provide legal support for future terminations and help employees understand the unacceptable behavior and its consequences.
- D. Employee training. The most effective prevention programs involve all employees, teaching them to recognize hazards and to respond to incidents of violence. A good communication system will ensure that employees know what to do in a threatening situation. Employers should train all employees on its zero-tolerance policy, the importance of a safe workplace, and how to get help. Training can help employers and employees identify high-risk situations earlier and intervene more effectively.
CONCLUSION
Workplace violence affects us all. Not only do victims of violence bear the toll but so do their co-workers, families, and employers. Countless employers underestimate or discount the risk of violence, often because violent acts occur so infrequently. Many acts of workplace violence have early indicators that give warning and provide an opportunity for prevention. Unfortunately, employers implement many programs only after a violent incident changes the face of their workplace environment. Effective workplace violence prevention should combine anticipation and reaction, creating a working environment which lowers the risk of violence while at the same time setting in place a structure to handle it, when it does occur, and minimize the consequences.
For more information about workplace violence and other employment law issues, call Krukowski & Costello, S.C. at (414) 423-1330, or e-mail educational services.
|
