VIOLENCE IN THE WORKPLACE
Presented by Thomas J. Leek, Esq.
Cobb & Cole
(904) 255-8171 or tleek@ccb.com
Workplace Violence Defined: Workplace violence is that which arises out of disputes or adverse interpersonal relationships between employees and employers in their place of employment. According to OSHA, there are three categories of workplace violence:
1 Stranger versus employee, e.g., armed robbery.
2 Client versus employee, e.g., disgruntled customer against retail clerk.
3 Employee versus employee, e.g., co-worker against co-worker.
I. Table of Contents
a. The Prevention of Violence in the Workplace
b. Threats of Violence & Actual Violence
c. Employer Liability to Victims of Violence in the Workplace
II. The Prevention of Violence in the Workplace
A. Some Statistics to Think About (1)
1. About 2 million people every year are attacked or threatened in the workplace. There are:
a. 1.5 million Simple Assaults.
b. 396,000 Aggravated Assaults.
c. 84,000 Robberies.
d. 51,000 Rapes and Sexual Assaults.
e. 1,000 Homicides. Some statistics about workplace homicides:
(1) 2nd Leading Cause of Death at Workplace
(2) A Firearm was used in 80% of the homicides
(3) 20% were the result of bombings, stabbings and/or beatings
2. Law enforcement officers, corrections officers and taxicab drivers were victimized at the highest rates.
3. 330,000 retail employees are victimized annually.
4. 37% of victims indicated they knew their assailants.
5. 44% of workplace attacks were committed by customers or clients; 20% by coworkers; 7% by bosses; 3% by former employees.
6. 67% of victims are male; 33% are female.
7. 12% of victimizations resulted in injuries, i.e., 240,000.
8. Violence in the workplace causes approximately 500,000 employees to miss 1,751,100 days of work each year and costs $55,000,000.00 in lost wages annually.
9. Men outnumber women 99-1 as perpetrators of fatal workplace violent incidents.
B. The Profile (2)
1. White Male
2. 30 - 40 year's old
3. History of interpersonal problems
4. Socially isolated
5. Unable to comply with company policies and procedures
6. Points the finger at others for his problems
7. Could have a history of substance abuse
8. Owns and is fascinated with weapons
9. Recently experienced some triggering event
C. Red Flags
1. Sudden drastic changes in behavior
2. Romantic obsession
3. Concentration of co-worker complaints
4. Recent humiliation
5. Depression
6. Large fluctuations in quality of work product
7. Anxiety and defensiveness
8. Attendance problems
9. Supervisor intensive needs
10. Drastic Changes in personal hygiene
11. Erratic emotional behavior
D. Hiring Considerations
1. Catch 22 - The battle between an applicant's rights not to be discriminated against and the employer's liability to others for negligent hiring and/or retention of employees is not clearly demarcated. On the one hand, an employer is subject to liability for taking adverse action against a mentally unstable employee. On the other hand, if a mentally unstable employee commits violence in the workplace, the employer may be liable to others for hiring the mentally unstable employee.
a. Know the parameters of permissible background checks.
b. Gauge your hiring practices to your needs.
2. Arrest Records and Convictions - A "conviction" is conclusive evidence that the applicant committed the crime. An "arrest," however, is not and only triggers the need to inquire further. No federal or Florida statute directly prohibits an employer from asking whether an applicant has been arrested. However, the EEOC and many courts have found that such information unfairly discriminates against minorities. The EEOC states that arrest records "alone" may not be used as "an absolute bar to employment" without violating Title VII.
a. Focus on whether the conduct that is the subject of the arrest indicates that the applicant is not suitable for a particular position.
b. Focus your inquiries on recent arrests and convictions.
c. Concentrate on theft, violence and recent drug-related crimes.
d. Check references and other outside sources. Be careful here as certain inquiries may be illegal and/or require notice be given to the applicant (Fair Credit Reporting Act).
e. Give the applicant a meaningful opportunity to explain the arrest.
3. Determination and Documentation - Focus your decision to hire or exclude on the arrest's relationship to the job. Consider the gravity of the offense, the recency of the arrest/conviction, and the nature of the position sought. The records you retain following a decision to exclude an applicant should:
a. Be Brief and Straightforward.
b. Concentrate on the three criteria above.
c. Center around factual observations.
d. Avoid value-laden conclusions.
E. Policies - Workplace violence, including threats, should not be tolerated in any degree. Your policy, as written and enforced, should reflect this, and the consequences for violations should be swift and severe. Put a management policy in place to review incidents of workplace violence annually and make determinations about the sum of incidents that occurred in your workplace over the past 12 months. Your policy:
1. Make it simple - Violence in the workplace will not be tolerated.
2. Make reporting the incidents an obligation - All incidents of workplace violence must be reported to your immediate supervisor by anyone witnessing or otherwise learning of the incident.
3. Make it harsh - Incidents of violence in the workplace subject the accused, and any employee knowing of such incident failing to report it, to discipline up to and including immediate dismissal.
4. Apply your policy consistently.
III. Threats of Violence and Actual Violence
A. A verbal threat of violence is workplace violence. - An employee who threatens another with physical injury should be terminated in most instances. The exception to the rule should be to allow the accused to keep his/her employment.
B. The employee sending you signals - An employee whom you determine is sending you signals that he or she may be about to commit workplace violence should be dealt with carefully. You should:
1. Document the suspicious behavior.
2. Discreetly meet with the employee and discuss the problem in a non confrontational manner.
3. Figure out if and how you can help.
C. Physical manifestations of imminent violence and violent incidents - This is where the employee appears violent, acts erratically, and demonstrates several of the "red flags" discussed above, or commits an act of violence.
1. Get the assistance of law enforcement.
2. Warn those in danger.
3. Remove others from the situation.
4. Speak slowly and softly if confronted.
5. Try to determine whether the employee is engaged in reality.
6. Direct the employee to his or her other options.
D. Dealing with co-workers following an incident - Once an act of violence was committed, or even threatened in a public manner, you are responsible to your employees and to your business to help the co-workers get things back to normal. This is not only the humane thing to do, but also makes good economic sense. You should:
1. Talk to your employees and provide them with an opportunity to comment.
2. Direct the Employees to the Employee Assistance Program if any.
E. The mentally disabled employee - Remember your obligations under the Americans with Disabilities Act here. If you suspect the employee may be suffering from a mental disability:
1. Consider referring the employee to voluntary or mandatory counseling with a medical professional.
2. Place the employee on unpaid or paid leave, depending on your policies, until the employee is declared "fit to return to work" by a medical professional.
3. Make no determination on the discipline the employee is to receive until the employee either refuses or fails to comply with your instructions to see a medical professional, or provides you with a clean bill of health.
4. Discuss a "reasonable accommodation" with the employee.
5. Remember that an employee who is a direct threat to himself or others is not afforded protection under the ADA.
IV. Employer Liability to Victims of Violence in the Workplace
A. Direct Liability - An employer has a duty to its employees to reasonably investigate its applicants such that the workplace is a safe environment. The theory here is that the employer was directly negligent because it failed to discover that the violent employee was capable of violence, or otherwise failed to discharge an employee capable of violence.
B. An employer is subject to a negligent hiring or retention claim where:
1. An employment relationship exists between the employer and person causing the injury (the employee).
2. The employer failed to sufficiently investigate, train, evaluate, etc. the employee, or the employer knew the employee was incompetent.
3. The employee caused injury to the victim where the cause of the injury was related to the characteristic of the employee that made him incompetent.
4. The employer's failures contributed to the injury.
5. The victim is injured.
C. To make an employer liable for its failure to control an employee, the victim must prove:
1. That the employee committing the violence was engaged in a dangerous activity.
2. The employer knew of the activity, or his propensity to do such.
3. The employer had the ability to control the employee and reduce the probability of harm to others.
4. Injury in fact.
D. Good hiring practices can be used to show that you made the appropriate investigations and mitigate any potential liability of the employer to victims of workplace violence.
Workplace violence is a reality that confronts all of us everyday in today's society. You, as employers, are charged with the obligation cure many evils over which you have little control. Workplace violence is only one of them. Your strategy must concentrate on prevention because it's the right thing to do; but your strategy must also protect your business from the eventuality of workplace violence.
Note: This document is available on the Cobb & Cole website at http://www.ccb.com. If for some reason I was not able to get to your question today, please feel free to contact me.
1. Statistics taken from the U.S. Dept. of Justice Bureau of Justice Statistics, Workplace Violence 1992-96 and Larry J. Chavez, B.A., M.P.A., 3 Most-Asked Questions on Workplace Violence.
2. American Society for Training and Development
