From the Labor & Employment Practice.
It Could Never Happen Here
Most employers do not take the threat of workplace violence seriously enough. Every now and then, a workplace shooting or murderous incident occurs that shocks employers and employees alike. However, the reality of these incidents soon fades and so does the momentary fear of a similar occurrence in our own workplace.
The potential employer liability for workplace violence is well established. Workplace violence litigation has dramatically increased, and juries tend to be generous in their awards. Most employers believe that state workers´ compensation statutes provide the exclusive relief for injuries arising out of an individual’s employment. However, courts across the country are carving out exceptions to this exclusivity rule by establishing an international tort exception to workers´ compensation claims. Therefore, in most workplace violence cases, workers´ compensation is limited and the employer must provide the relief.
An intentional tort theory might exist when the nature of an injury does not arise “by accident´ within the employment setting. Employer liability in such a case is triggered when the employer does not act to prevent or eliminate a known threat. Once an intentional tort is alleged, an injured employee is able to proceed under a variety of common law theories, including voluntary assumption of a duty to protect, negligent or inadequate security, negligent failure to warn, negligent hiring, negligent retention, negligent supervision and other potentially expensive torts for which there is no financial cap. Employers are becoming more creative in their efforts to utilize legal remedies by formulating novel causes of action and also availing themselves of established precedents.
An employer’s duty to protect employees from the criminal acts of their parties arises from the employer’s express or implied promise to provide a safe and secure work environment. Once an employer is found to have assumed a duty to provide security, the employer is bound to exercise this duty with reasonable care. Failure to do so creates liability if harm arises.
Several cases are illustrative. In La Rose v. State Mutual Life Assurance Co., No. 9322684 (215th Dist. Ct., Harris County, Tex. Dec. 5, 1994), the family of Francesia La Rose filed a wrongful death action against her employer on the basis that the company failed to adequately protect La Rose after her former boyfriend called her supervisor and warned that he would come to the office to kill La Rose if the supervisor did not fire her. The next day he walked into the office, shot, and killed her. Foreseeability of danger, especially in the domestic violence context, can sometimes be dispositive. In La Rose’s case, her boyfriend came to the building where she worked, walked right past building guards who allegedly had pictures of him, and shot La Rose. La Rose’s daughter reportedly received $800,000 in a structured settlement and La Rose’s parents received $50,000.
When an employer voluntarily provides security, a duty to provide adequate security is created. In Vaughn v. Granite City Steel, 576 N.E. 2d 874 (Ill. App. Ct. 1991) appeal den´d, 142 Ill. 2d 666, 584 N.E. 2d 141 (Ill. 1992), an employee’s estate was awarded $415,000 in a wrongful death action when an employee was fatally shot in the employer’s parking lot and the evidence presented at trial showed that security was “grossly inadequate.” In a 7.9 million dollar verdict rendered in May 1999, a jury found that Union Butterfield and Dormer Tools were negligent in protecting two men who were killed when a violence-prone dismissed employee went on a shooting spree in his Ashville, North Carolina workplace. The fired worker had threatened to return and “take management with me.”
Ramifications of Workplace Violence
The ramifications of workplace violence are devastating to the victims, witnesses, and their families. Of course, the loss of human life can never be replaced. Victims of random violence may include co-workers, supervisors, and even clients. Some valuable employees may never return to work after a violent workplace episode. Financial ramifications may also be severe enough to cause the entire business to shut down for a period of time. Studies show that productivity losses may be as high as 80 percent for up to two weeks after an incident. Productivity can be hampered by police and internal security investigations, discussions about the incident, and employee counseling sessions. Employees may exhibit decreased efficiency and productivity due to post-traumatic stress. Media accounts of the incident and rumors may put an employer in a position of having to restore the business’s reputation following charges of incompetent or irresponsible management.
Violence Prevention Program
The decisive question is: what can be done to help avoid violent incidents in the workplace? The answer is simple: an employer must develop a violence prevention program. An employer will be in a much better position to defend itself in any lawsuit resulting from workplace violence if it can demonstrate that, at the time of the violent encounter, the employer had adopted and implemented a violence prevention program. But most importantly, these programs can save lives. Ironically, the U.S. Postal Service, the same organization that gave rise to the term “going postal” as a euphemism for workplace violence, is now, accordingly to reports, two times safer than the average workplace. Why? Because about nine years ago in the midst of all of the shootings and horrendous publicity, the Post Office instituted a zero tolerance policy for violence.
Adopting a violence prevention program is the single most effective, preventive step. The U.S. Postal Service, as an example, has teams in 85 districts around the country that are trained to assess any threats of violence that may arise. A focal point of its program is employee preparedness – formulating a plan of action before something happens. Today, the Postal Service is just about the worst place to make a violent comment or even a violent wisecrack, because it is taken seriously all the way to the top, and management is crucial for a successful violence prevention program.
The fundamentals of a no-nonsense violence prevention program are as follows:
- A clear statement that the employer is concerned about violence in society that may filter into the workplace. The employer must let employees know that it intends to take immediate action to provide a safe and healthful work environment.
- Set zero tolerance for violent words and acts in the workplace environment, whether by employees or customers.
- Require employees who experience or witness workplace violence to immediately report it to a designated person.
- Take appropriate action when customers or visitors engage in violent or potentially violent behavior. Notify law enforcement personnel or security.
- Properly train employees, especially receptionists and security personnel.
- Require receptionists to know security officers in their building, and have telephone numbers for building security and local police formatted to speed dial.
- Notice the warning signs of employees who may be prone to violence. Refer anyone who displays a violent tendency or makes offensive comments to the Company’s employee assistance program (EAP).
- Review the hiring and termination processes. Introduce more comprehensive background screening for applicants, since the best prediction of future violence is past violence. Evaluate how the termination process is conducted. It can make the difference between a routine event and a crisis.
- Require employees to attend “preparedness” seminars, which are often offered in metropolitan areas.
- Prohibit all weapons from company premises.
No work environment is immune to workplace violence. It is crucial for employers to understand the gravity of the situation and their own exposure. Employers should commit to budget sufficient resources to the adoption and implementation of an effective violence prevention program. To be effective, management must develop a system of accountability for the program’s success, be aware of studies of workplace and industry trends, and implement comprehensive training and educational programs for management and employees alike.
If you need help developing a violence prevention program for your workplace, please reach out to one of the attorneys of our labor and employment practice.