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 MagazineMaggazaziine isi publishedpublished byby tthehe NortheastNoNortrtheheasast 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; workworkplaceplace violence policies. OSHA has fi ed” to continue to perform the job physical evidence of employee abuse of aalsolso issuedissue guidelines that can be useful or which poses a “direct threat” to the alcohol or drug use) which should be iinn 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-discranti-discrimination and occupational restrict an employer’s ability to obtain agers, legal, medical, security) either safesafetyty 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