EMPLOYMENT LAW UPDATE Preventing Workplace Violence A “Catch-22” for Employers

By Daniel B. Klein, Esq., and Mark A. Lies II

s the pace and emotional pressures of everyday CAUSES OF VIOLENCE life impact employees at home and in the work- While many incidents of workplace violence appear to be place, a distressing and tragic trend has been random and unpredictable, most commentators agree that such A incidents are predictable and result from the interaction of two occurring for some time—employees are unable to con- dynamics: trol their emotions at work, and violence erupts toward • Personal factors: Numerous factors occurring in the employ- managers, coworkers, customers or third parties. The ee’s personal life (e.g., marital problems, prior history of physi- unfortunate statistics show that homicide is the number- cal or mental impairment, drug or alcohol abuse, or the same one cause of death for women in the workplace and the circumstances occurring to a member of the employee’s imme- third overall cause for men and women. In times of eco- diate family). • Workplace factors: Real or perceived factors occurring in nomic uncertainty, particularly as employees face layoffs the workplace that simultaneously impact the employee (e.g., and corporate reorganizations, the potential for work- potential layoff s or reductions in force; lack of career opportu- place violence cannot be underestimated. nity; unequal or unfair opportunities for training, compensa- tion, benefi ts or overtime; or harassment by coworkers). No employer wants such incidents to occur. Ironically, how- ever, as employers attempt to avoid these potential legal lia- Fortunately for our society and the workplace, when these bilities through the creation and enforcement of employment two dynamics collide, most employees are able to control their policies, they face a host of federal and state laws that may pro- emotions and somehow deal with their day-to-day side eff ects. tect certain employee conduct. More importantly, because an However, because no employee will typically notify the employer employer has no objective “litmus test” for predicting which unambiguously that he or she is no longer able to maintain an employee may become violent under particular triggering cir- emotional balance when dealing with these dynamics and that a cumstances, there is no foolproof way to eff ectively eliminate sudden and potentially violent physical or emotional outburst is the hazard. Th is article will discuss certain factors that should imminent, the employer cannot conveniently schedule a police, be considered to anticipate and to avoid and respond to this medical, security, or other intervention to prevent such event. In threat, including the potential use of and restrictions on fi tness order to have any reasonable chance of predicting and avoiding for duty (FFD) evaluations. workplace violence, the employer (through its supervisors) musmustt

8 insightsinsights • Spring 2010 • InsightsInsigInsighhtss MMagazineaggazaziine iis pupublishedblished bbyy tthehe NoNNortheastortrtheheasast HuHHumanman Resources AssociatioAssociationn become more sophisticated in observing, liability doctrines under common law or emotional status and relevant activi- identifying and understanding the signs (based upon a negligence theory) where ties outside of the workplace that might and symptoms that frequently telegraph an employer may be held liable for the vio- be essential in determining whether an that these dynamics are at work and may lent acts of an employee if the employer: employee poses such a risk. For exam- be about to overwhelm the employee’s • Negligently hired the employee (e.g., ple, many states now have laws that ability to cope in a rational manner. Once failed to investigate the employee’s prevent employers from taking adverse these signs and symptoms are identifi ed, work history to determine if there was job actions against employees for engag- the employer should take action, which prior violent conduct) ing in lawful off -duty conduct or using may include an FFD evaluation under the • Negligently supervised the employee lawful products (e.g., smoking), or for appropriate circumstances. (failed to warn or discipline an engaging in off -premises recreational employee who engaged in threatening activities outside of working hours. CONFLICTING EMPLOYER DUTIES conduct) Employer obligations. Based upon • Negligently trained the employee PREVENTIVE ACTION: several diff erent areas of federal and state (failed to provide training to employ- WORKPLACE VIOLENCE POLICY law, every employer has a legal duty to pre- ees regarding prohibited conduct that Against this potential liability mine- vent violence and the underlying behav- may have given rise to violence and fi eld, an employer should develop an ior that may generate it. Perhaps the most the consequences of engaging in such eff ective written workplace violence pre- well-known duty arises out of Title VII conduct) vention policy and should communicate of the Civil Rights Act of 1964, 42 U.S.C. • Negligently retained the employee it to all employees to maximize its defense § 2000e et seq., and parallel state anti- (failed to terminate an employee who against these potential claims. At a mini- discrimination laws, which require an engaged in acts or threats of violence) mum, the workplace violence prevention employer to protect its employees against policy and program should include the unlawful forms of workplace harassment Every employer has a legal following elements: (e.g., based on sex, race, color, religion, duty to prevent violence • A stated management commitment to or national origin) that create a hostile or and the underlying protecting employees against the haz- off ensive work environment. Frequently, ards of workplace violence, including employee violence is triggered by such behavior that may both physical acts and verbal threats harassing conduct, which causes the vic- generate it. • A statement that the employer has tim (or the victim’s spouse or relative) to a “zero tolerance” policy toward react to the harasser (and sometimes to Employee rights. When employ- threats or acts of violence and will innocent coworkers or bystanders) with ers attempt to aggressively enforce a take appropriate disciplinary action a refl exive anger in the form of verbal workplace violence policy, they are fre- against employees who engage in such outbursts or even physical acts. Th e same quently confronted by federal and state conduct anti-harassment rules apply under the laws that protect employees against dis- • Identify means and methods for Age Discrimination in Employment Act, crimination involving mental or emo- employees to notify the employer of 29 U.S.C. § 621 et seq., and the Americans tional conditions that may constitute perceived threats of violent acts in a with Disabilities Act, 42 U.S.C. § 12101 legally protected disabilities. Under the confi dential manner et seq. Americans with Disabilities Act (ADA), • Establish a means to promptly investi- Under the Federal Occupational 42 U.S.C. § 12101 et seq., and similar gate all such threats or violent acts Safety and Health Act (OSHA), 29 U.S.C. state laws, an employer is limited in • Develop consistent, fi rm discipline for § 650 et seq., an employer is required to its ability to screen and reject a poten- violations of the policy protect employees against “recognized” tial employee on the suspicion that the • Provide training to managers and workplace safety and health hazards individual may become violent because employees to identify signs and symp- that are likely to cause serious injury or of a mental or emotional impairment. toms of employee behavior which death. OSHA has identifi ed workplace Further, aft er the employment relation- may predict potential violence (erratic violence as such a hazard, particularly in ship exists, an employer may have to behavior; employee comments regard- the health care, retail and taxicab indus- accommodate a disruptive employee ing homicide or suicide; provocative tries. Th e agency has issued citations with with a mental or emotional disability communications; disobedience of pol- monetary penalties alleging that employ- until such employee engages in conduct icies and procedures, presence of alco- ers hhaveave failed to develop appropriate which renders the employee “unquali- hol, drugs or weapons on the worksite; workplaceworkplace violence policies. OSHA has fi ed” to continue to perform the job physical evidence of employee abuse of alsoalso issuedissue guidelines that can be useful or which poses a “direct threat” to the alcohol or drug use) which should be inin ddevelopingevelop such programs (which can safety or health of the employee himself reported to the employer be found at its website, www.osha.gov). or to other employees. In addition, many • Establish a team of qualifi ed individu- In aadditiondd to the federal laws and state state right-to-privacy laws may severely als (e.g., human resources, risk man- anti-discriminationanti-discr and occupational restrict an employer’s ability to obtain agers, legal, medical, security) either safetysafety lawlaws,s most states have also developed information about an employee’s mental within the company or via readily

Insights Magazine is published by the Northeast Human Resources Association • Spring 2010 • insights 9 available third parties, to respond to a this process. Because of the heightened the investigation, the employer should potential or actual incident sensitivity in the media to spectacular inform the employees involved (particu- • Consider establishing an Employee and tragic workplace violence incidents, larly the “target” employees) that they are Assistance Program (EAP) to provide many employers feel compelled to free to contact the police if they believe assistance to employees who may be engage in a lightning-strike, knee-jerk it is appropriate and that there will be no experiencing mental or emotional reaction by immediately terminat- adverse action for making out a report. stress before an act of violence occurs ing or imposing signifi cant discipline upon the questionable employee. Such FITNESS FOR DUTY EVALUATION THREAT ASSESSMENT vigilante-like justice may eventually be OPTIONS In the typical situation, a coworker found to have no foundation when the Once the employer has received or supervisor either observes or learns of subsequent management investigation information that an employee has an employee’s questionable, threaten- reveals the proper context in which the engaged or threatened to engage in ing or outright bizarre verbal or physi- conduct or comments occurred, that the physical or verbal conduct that has the cal behavior either within or outside of conduct or comments were ambiguous potential to cause physical or emotional the workplace, which creates a concern or misquoted, or, worse, that the threat harm to coworkers or third parties, the and sometimes a palpable fear that the complaints made against the employee employer must determine the appropri- employee is about to engage in some were fabricated by other employees for ate course of action. Obviously, if the type of activity that may result in injury an ulterior purpose. If any of those situ- conduct is suffi ciently egregious, there to the employee himself (suicide) or to ations turn out to be the case, the poten- are situations where there is no need to other employees (threats, hostile acts). tial for employment-related litigation consider an FFD evaluation and termi- Th e frightened or concerned coworker is substantial. Th e employer, therefore, nation or other severe discipline will be or supervisor brings this information to should proceed cautiously and should warranted. the employer and asks management to conduct a thorough investigation before Th e use of an FFD evaluation typically address such problems. implementing any permanent employ- arises where the employee’s conduct raises Hopefully, the employer has a writ- ment actions. While the investigation is one or both of the following questions: ten workplace violence prevention pol- proceeding, however, the employer may • Is the employee mentally and emotion- icy, and managers have been trained to consider whether to temporarily sus- ally qualifi ed to continue to perform be receptive to receiving and respond- pend (with or without pay) the employee the essential functions of the job? ing to this disturbing information from against whom the complaint has been • Does the employee pose a direct employees. An employer cannot ignore made. Th is step should be seriously con- threat to the safety of the employee, these complaints and must promptly sidered when the threats are specifi c in a coworker or a third party who is investigate them. If not, a tragedy could nature as to the articulated action (e.g., related to the employer’s business? result. Th e employer should begin an “I’m going to come in here and shoot expedited process to focus on this infor- the entire mailroom”) or directed at Th e employer who is confronted with mation and commence the prelimi- specifi c individuals by name or groups these questions has several potential nary process of assessing whether the of individuals by description (e.g., “I’m options for obtaining an FFD evaluation, reported threatening or hostile behavior going to kill Jane Doe,” or “I’m going within limitations, under the following is credible—and, if so, determine what to shoot all employees from” a given laws: the Americans with Disabilities Act, response, if any, is necessary or appro- country or religious group). Removal the Family and Medical Leave Act, and priate. Th is response may include an of the employee during this period will federal and state worker’s compensation FFD evaluation (to be discussed below). hopefully prevent the occurrence of an acts. Th e application, scope and limitations Initially, the investigators should have incident. Th e hostile employee should of these laws are in many respects both familiarity with employment law, an be told not to return to the workplace or complementary and confl icting. Th ese ability to conduct a competent inquiry to communicate with anyone at the work- laws require careful analysis, and employ- to seek the underlying factual informa- place until authorized to do so. ers, therefore, should consult with counsel tion necessary to make an assessment, As the investigation continues, and if before seeking an FFD evaluation. and—equally important—the ability to credible threat information is received, maintain confi dentiality. Th e employ- the employer should seriously consider REACHING A CONCLUSION ees who come forward with information involving the local police authorities at Assuming that the investigation iden- should be told that the employer will the earliest opportunity. Th ere is a well- tifi es credible information of threatening take all necessary action to protect them recognized legal privilege to communicate behavior, the employer must timely con- against retaliation and that the investi- with law enforcement authorities as long clude its investigation and decide on the gation will be maintained as confi den- as such communication is truthful and action to be taken, possibly including: tially as possible, subject to disclosure in made in good faith. In many instances, • Verbal warning a court or administrative proceeding. the police authorities may launch their • Written warning CAUTION: A word of caution is in own investigation and intervene directly • Extended suspension order at this stage before proceeding with to deal with the hostile employee. During • Termination

10 insights • Spring 2010 • Insights Magazine is published by the Northeast Human Resources Association Th e investigation information should suspects to have made the complaints. restructuring access to the worksite, be documented and preserved in the event If the termination is done by letter, the changing security access codes, hiring that litigation arises. employee should be informed in the letter outside security or off -duty police for To buttress its decision, the employer that the investigation is complete, that it a short period aft er the termination to may wish to engage a medical health pro- has revealed violations of company poli- reassure the remaining employees and fessional who is experienced in threat cies (identify them) and that the employer provide rapid response capability if the assessment and qualifi ed to provide must regretfully terminate the employ- terminated employee returns to the site forensic testimony. A threat assessment ment relationship. Th e employee should seeking to retaliate. can frequently corroborate the employer’s also be told not to return to the premises In sum, the hazard of workplace vio- own assessment that the threat is indeed or to communicate directly or indirectly, lence involves numerous potential liabil- credible. Th e medical opinion can also with any employees at the workplace. Th e ity issues under federal and state law. If an undercut a subsequent contention that the letter should also identify a contact person employer follows the recommendations employer’s assessment was based upon at the company for completing any benefi t set forth above, it can substantially reduce stereotypes of mental or emotional dis- documentation (e.g., COBRA insurance such liability in the event an incident was abilities and an unlawful motivation for coverage). Finally, the employee should be to occur. ■ an employment decision. told that any personal property will be If the employer determines that termi- returned to the employee’s residence Daniel B. Klein, Esq., is a partner nation is appropriate and necessary, the by common carrier. with Seyfarth Shaw, LLP, and employer may wish to seriously consider At the same time that the termina- NEHRA’s legal adviser. Contact termination by telephone (confi rmed in tion correspondence is being sent to the Dan at [email protected]. Dan’s writing) or by letter. Th ere is no require- employee, the employer may also wish colleague, Mark A. Lies II, is a ment to terminate an employee in person, to notify the police authorities that the partner in Seyfarth’s Chicago office particularly where the individual may termination is occurring and that addi- who specializes in occupational threaten or harm the person who con- tional patrols in the workplace neighbor- safety and health and related ducts the termination or get loose within hood would be appreciated. Th e employer employment law, with expertise in the workplace to retaliate against those should also consider enhancing worksite workplace violence issues. Contact employees whom the hostile employee security aft er the termination, including Mark at [email protected].

Insights Magazine is published by the Northeast Human Resources Association • Spring 2010 • insights 11