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Violence in the
Workplace
C. Stuart Mauney
RIMS SoutheastEducational Conference
September 14, 2011
OutlineOutline
I. Overview of Violence in the Workplace
II. Employer Liability for Workplace Violence
III. Preventing Workplace Violence
IV. Responding to Workplace Violence
Overview of Violence in the
Workplace
• Workplace shootings account for 10% of all work-related deaths per annum in the United States.
• Over the past 5 years, 2004-08, an average of 564 work-related homicides occurred each year in the United States.
• In 2008, a total of 526 workplace homicides occurred, or 10% of all fatal work injuries.
Workplace Violence StatisticsWorkplace Violence Statistics
• Workplace homicides are now the second highest cause of work related deaths in America, trailing only behind transportation fatalities such as workers killed in highway accidents.
• The average retail employee is more likely to be shot fatally by a co-worker than a construction worker is to fall to his death, or be killed by operating heavy equipment.
Workplace Violence StatisticsWorkplace Violence Statistics
• In 2009, 12% of all work related deaths were homicides, out of the total 18% classified under the assaults and violent acts category.
Source: U.S. Department of Labor, Bureau of Statistics: Workplace Violence Fact Sheet, July 2010
Workplace Violence StatisticsWorkplace Violence Statistics
Employer Liabilityfor
Workplace Violence
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
I. Occupational Safety and Health Act of 1970 (OSH Act)
A. Duty to Provide Safe and Healthful Working Environment
“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his
employees.” 29 U.S.C. § 654(a)(1).
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
B. No Specific Standard for Workplace Violence
1. Draft Proposed Safety and Health Program Rule – Rejected
C. Workplace Violence Guidelines
1. Directed to health care, social services
and retail industries
+ However, are generic in nature and likely to be interpreted as being applicable to all industries
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
2. Components to effective safety and health programs
+ Management commitment and employee involvement
+ Worksite analysis
+ Hazard prevention and control
+ Safety and health training
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence 3. Instructions for management+ Allocate resources to violence prevention
programs+ Accountability for program implementation+ Provide Counseling+ Zero-tolerance policy+ Studies to identify trends and appropriate
security measures+ Barrier between employees and potential
perpetrators+ Comprehensive training and educational
programs
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
D. Civil Penalties
Employers who know that a risk of
violence is high and who fail to take action to protect employees may be subjected to civil fines.
E. Criminal Prosecution – Appropriate in “Egregious” Cases
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
II. South Carolina Statutory Provisions
A. S.C. Code Ann. § 41-15-80
1. South Carolina’s version of 29 U.S.C. § 654(a)(1)
B. S.C. Code Ann. § 41-15-510
1. Anti-retaliation provision
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
III. Negligence Liability
General Rule: Employers not vicariously liable for violent acts of employees.
However, negligence liability may be premised upon any of the following:
A. Duty to Warn
Where an employer is aware of a danger directed towards a specific employee, it has a duty to warn the employee of the danger.
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
B. Negligent Hiring
1. An employer has a duty to protect its employees and customers from injuries caused by employees whom the employer knows or should know pose a risk of harm to others.
2. Focus on whether the employer knew or should have known of violent propensities at the time of hiring.
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
3. Liability may also be premised upon failure to perform adequate background check such as checking references or contacting former employers.
4. Suggested actions:
+ Carefully review all information on
employment application
+ Question applicant about any gaps in employment history
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
+ Contact prior employers to verify dates of employment and positions held
+ Attempt to ascertain information from prior employers regarding applicant’s character
+ Document Efforts
+ Defer offering job until screening process is completed
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
+ Advise applicant of consequences of
omissions or misrepresentations on
application
Gary Mathiason, Terror and Violence
in the Workplace (1994).
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
C. Negligent Retention
1. Consider whether the employer knew the offending employee was “in the habit of misconducting himself in a manner dangerous to others.”
2. Employer may be required to discharge employee.
Doe v. ATC, Inc., 367 S.C 199, 624 S.E.2d 447 (S.C. Ct. App. 2005).
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
D. Negligent Supervision
1. May be liable for intentional harm by
employee if:
+ The employee is (a) on the employer’s premises or (b)
is using a chattel of the employer
AND
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
+ The employer knows or has reason to
know that he has the ability to control
his employee
AND
+ Knows or should have known of the necessity and opportunity for exercising such control
Moore by Moore v. Berkeley Cnty. Sch. Dist., 326 S.C. 584, 486 S.E.2d 9 (S.C. Ct. App. 1997).
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
E. Negligent Training
F. Tort Duties Arising from Contractual Obligations
“An employer also may have a legal duty arising out
of a contract which flows to a plaintiff with whom he is not in privity of contract. This occurs when an employer, by entering into a contract with an employee, places himself in such a relation with the plaintiff that the law imposes upon the employer an obligation, sounding in tort and not in contract, to act in such a way that the plaintiff will not be injured.”
Employer Liability for Workplace Violence
Employer Liability for Workplace Violence
IV. Contractual Liability
A. Company Policies
B. Employee Handbooks
PreventingWorkplace
Violence
Preventing Workplace Violence
Preventing Workplace Violence
I. Applicant Background Checks -- How to Avoid and Defend Against Claims of Negligent Hiring
A. Information obtained directly from the applicant
1. Carefully review the application form or
résumé
(a) Name
(b) Address
(c) Social Security Number
Preventing Workplace Violence
Preventing Workplace Violence
(d) Previous addresses
(e) Educational information
(f) Employment history
(g) Criminal convictions (with a statement that an affirmative answer will not automatically disqualify the applicant from consideration).
(h) Names of references
Preventing Workplace Violence
Preventing Workplace Violence
2. Interview
(a) Question the applicant about all
gaps in employment
(b) Ask why the applicant left previous
employment
(c) Question the applicant about
frequent job changes
Preventing Workplace Violence
Preventing Workplace Violence
3. Obtain consent/release from the applicant
for:
(a) Reference checks
(b) Obtaining a credit report, criminal
background check, and investigative consumer
report.
Preventing Workplace Violence
Preventing Workplace Violence
B. Reference checks -- contact all prior employers
1. Ask only questions that can be asked of the applicant under applicable federal
and state laws.
2. Areas of inquiry should include:
(a) Verification of employment dates
(b) Verification of positions held
(c) Reliability of the employee
Preventing Workplace Violence
Preventing Workplace Violence
(d) Work performance
(e) Participation or involvement in violent conduct
(f) Insubordination
(g) Dishonesty
3. Carefully document information received
4. Consider use of a release signed by the applicant to be forwarded to former employers
Preventing Workplace Violence
Preventing Workplace Violence
C. Access and Use of Criminal Records
1. Inquire about criminal convictions on
application form
2. Investigate gaps in employment or other
evidence of applicant misrepresentations
3. Consult public court records
Preventing Workplace Violence
Preventing Workplace Violence
4. When making employment decision, consider the following:
(a) Does the conviction relate to the employee's availability to work?
(b) Does the conviction relate to the employee's fitness to perform the particular position in question?
(c) Does the conviction indicate that the employee may be a threat to
safety in the workplace?
Preventing Workplace Violence
Preventing Workplace Violence
II. Investigations of Current Employees -- How to Avoid and Defend Against Claims of Negligent Retention
A. Promptly investigate all complaints involving
workplace violence.
B. Develop a policy concerning security and searches
1. Search of employer property
2. Search of employee’s personal items
Preventing Workplace Violence
Preventing Workplace Violence
3. Body searches
4. Substance abuse testing policy
C. Obtain a consent form from each employee
D. Retrieval of electronic messages
1. The Electronic Communications Privacy Act of 1986
2. Omnibus Control and Safe Streets Act of 1968
E. Surveillance
Preventing Workplace Violence
Preventing Workplace Violence
III.Train Supervisors
A. Supervisors should be trained to recognize early warning signs of a potentially
violent person.
Common warning signs that an individual
may be prone to violence in the workplace
include the following:
Preventing Workplace Violence
Preventing Workplace Violence
1. History of violent behavior
2. Obsession with weapons and/or fascination with the military
3. Makes repeated verbal threats of harm
4. A person who intimidates or instills fear
in others
5. A loner – socially isolated
6. Obsessive involvement with job
Preventing Workplace Violence
Preventing Workplace Violence
7. Being paranoid – view everything as a conspiracy
8. Holding a grudge – unnatural intensity of
feeling – disgruntled regarding perceived
injustice at work
9. Expressing desperation over family, financial, or personal problems
10. Propensity to push limits of normal conduct
Preventing Workplace Violence
Preventing Workplace Violence
11. Fascination with recent incidents of
workplace violence
12. Workplace events generating stress
13. Substance abuse/alcoholism
14. Vandalism/theft
15. Poor self-esteem
16. Difficulties in controlling temper
Preventing Workplace Violence
Preventing Workplace Violence
17. Cries for some type of help
18. Chronic disputes with management
19. Male between the ages of 30 and 40
20. Migratory job history
B. Supervisors should be trained to resolve conflict
1. Train supervisors in effective methods of communication and negotiation so they can attempt to resolve disputes in that manner.
Preventing Workplace Violence
Preventing Workplace Violence
2. Train supervisors to apply work rules and disciplinary procedures consistently.
C. Train supervisors in the proper method of handling employees during terminations
or labor disputes.
D. Train supervisors to deal with a potentially violent employee before a violent act
occurs. Supervisors should be on the lookout for changes in behavior. Document bizarre behavior or comments
Preventing Workplace Violence
Preventing Workplace Violence
2. Train supervisors to apply work rules and
disciplinary procedures consistently.
C. Train supervisors in the proper method of handling employees during terminations or labor disputes.
D. Train supervisors to deal with a potentially violent employee before a violent act occurs. Supervisors should be on the lookout for changes in behavior. Document bizarre behavior or comments
E. Conduct exit interviews
Preventing Workplace Violence
Preventing Workplace Violence
F. Ensure that all supervisors take appropriate steps when they become aware of an incident of workplace violence in order to avoid claims of negligent supervision. For example, in Brockington v. Pee Dee Mental Health Center, 433 S.E.2d 16 (S.C. Ct. App. 1993), the Mental Health Center avoided liability by taking immediate action upon learning of an employee's sexual assault of a client to prevent an employee from harming others. The Center’s actions included
Preventing Workplace Violence
Preventing Workplace Violence
isolating the employee from clients, conducting an investigation, and terminating his employment following the investigation. As a result, the South Carolina Court of Appeals found that the Center exercised reasonable care to control its employee while he was acting outside the scope of his employment and to prevent him from harming others once they knew of the necessity to control him.
G. Train supervisors to defuse a violent situation.
Preventing Workplace Violence
Preventing Workplace Violence
IV. Create a Workplace Violence Policy
A. Policy should emphasize that the employer
will not tolerate:
1. Harassment,
2. Threats of violence,
3. Intimidation,
4. Possession of weapons on company
property.
Preventing Workplace Violence
Preventing Workplace Violence
B. Policy should include a reporting procedure:
1. Human Resources Department
2. Consider the designation of a threat response team in the policy. The
team may consist of the following:
(a) Human resource personnel;(b) Security personnel(c) Psychological professionals; and(d) Legal professionals.
Preventing Workplace Violence
Preventing Workplace Violence
C. Policy should contain an enforcement provision.
V. Create a Safe Workplace Culture to Support Victims
A. No penalties for reporting violence, threats,
harassment, intimidation, possession of drugs/weapons
B. Reporting will remain confidential and information disclosed on “need-to-know” basis.
Preventing Workplace Violence
Preventing Workplace Violence
C. Provide enhanced safety and security to reporters
D. Provide referrals to ancillary professional services
VI. Establish Security Procedures
A. Require visitors to report to a single reception
area
B. Consider using an electronic access system
Preventing Workplace Violence
Preventing Workplace Violence
C. Upgrade lighting
D. Implement an after hours escort program
E. Use an intercom system
F. Use closed circuit cameras in access areas
G. Install an alarm system
H. Develop a duress notification system
Preventing Workplace Violence
Preventing Workplace Violence
I. Establish a relationship with local law enforcement agencies
J. Use of ID cards
K. Create, communicate, and practice emergency action plan
L. Train employees in CPR and first aid
M. Avoid having any one employee in office
during off hours.
Preventing Workplace Violence
Preventing Workplace Violence
VII.Termination of a Potentially Violent Employee
A. Involve more than one managerial employee.
B. Conduct on neutral territory – such as a conference room.
C. Emphasize business-related reasons for the
termination.
D. Alert security to be on standby and to discreetly escort the person from the premises.
Preventing Workplace Violence
Preventing Workplace Violence
E. Alert law enforcement of any potential
problems.
F. Alert the victim and provide special security
for the victim until the threats subside.
G. Consider obtaining a restraining order.
Case Study – Domestic Violence
Case Study – Domestic Violence
Situation
A firm associate approached the Human Resources director with information that he is representing a staff member in a divorce proceeding. He states that the employee will be visiting with the HR director to give her further information. The associate reveals that the situation is very volatile and that steps will need to be taken for the employee’s protection.
Case Study – Domestic Violence
Case Study – Domestic Violence
Interview with the HR Director
The employee states that she has been in an abusive marriage for some time; that her spouse is a member of a local law enforcement agency and carries a gun. She also relates that previous calls for assistance from her local police station have been unsatisfactory in solving the problem. She also states that the abusive husband has told her that if she should seek a separation “she would be dead.” Nevertheless, she has decided that she must extract herself from the marriage and will, in fact, serve divorce papers on him on a date certain. The HR director assures her that everything will be done for her protection.
Case Study – Domestic Violence
Case Study – Domestic Violence
The Action Plan
After consultation with the associate, a firm Employment attorney and the Managing Partner, the following procedure is outlined:
1. Arrangements are made to have the employee
work on another floor the day of service and
for the remainder of that week. She is to be
sent home in a taxi on the day of service.
Case Study – Domestic Violence
Case Study – Domestic Violence
2. Receptionists on each floor are given a picture of the spouse and instructions to call Security and HR if he should appear. He is to be told that she is not at work that day.
3. Building Security is given a picture of the spouse with instructions to deny access to the elevator bank if identified. Security is also alerted to be prepared for an emergency call and alert to Firm’s panic message, “Mr. ISOP, please report to the 30th floor.”
Case Study – Domestic Violence
Case Study – Domestic Violence
4. Local police in the area of the workplace are alerted to a potentially dangerous situation.
5. The Domestic Violence section of the local police is alerted.
6. The Employee Assistance Program is contacted and the employee is put in touch with a counselor.
To protect the employee’s privacy, other employees are told only that she is doing a special project that requires a change of workspace.
Case Study – Domestic Violence
Case Study – Domestic Violence
The Result
On the date of service, the employee goes to the designated workspace. Though there is much tension, she is able to function and the day is uneventful. She continued to consult with the EAP throughout the divorce proceedings. Although this husband never arrived at the Firm, an action plan, with all necessary players alerted, was in place.
Responding toWorkplace
Violence
Responding to Workplace Violence
Responding to Workplace Violence
I. Conduct An Investigation
All threats of workplace violence should be taken seriously. As a result, every employer should formulate a plan for investigating threats or complaints.
A. Interview the individual making the report and obtain as much information as
possible concerning the threat. This information should include:
1. Who made the threat?
Responding to Workplace Violence
Responding to Workplace Violence
2. Who was the threat made against?
3. What was the specific language of the threat?
4. Was there any physical conduct which would indicate that the individual intends to follow through on the threat?
5. Names of witnesses to the threat or conduct.
6. Time and place where the threat or violent
conduct occurred.
Responding to Workplace Violence
Responding to Workplace Violence
7. Any threats or violent conduct by the
individual before this incident?
8. Any other relevant information.
II. Physical Security of the Employer’s Premises
A. South Carolina case law on premises security
Responding to Workplace Violence
Responding to Workplace Violence
1. In McBeth v. TNS Mills, Inc., 458 S.E.2d 52 (S.C. Ct. App. 1995), an employee was assaulted and killed on her employer's parking lot as she was preparing to leave the plant following the conclusion of second shift. The administrator of her estate sued the employer for negligently failing to provide adequate security. The administrator's expert witness testified that the mill failed "(1) to have an adequate security plan; (2) to know of all 'breach[es] of security' that occurred on the premises over a two year period,
Responding to Workplace Violence
Responding to Workplace Violence
including three thefts from vehicles, one act
of vandalism, one attempted theft from avehicle, and two thefts of property; (3) toproperly supervise shift changes despitesuspicions of disorderly conduct in theparking lot and three prior domesticdisturbances including one occasion[involving the individual who assaultedMcBeth], resulting in a plant supervisor[asking that individual] to leave thepremises; and (4) to properly investigate
thedisturbance involving [that individual].”
Responding to Workplace Violence
Responding to Workplace Violence
The expert was not allowed to testifyregarding the foreseeability of the
assault.The jury returned a verdict for thedefendant. The verdict was upheld
onappeal.
B. Methods to improve safety of physical facilities
1. Conduct a security review
2. Enhance lighting
Responding to Workplace Violence
Responding to Workplace Violence
3. Fencing
4. Locks
5. Computer card key system
6. Guards
7. Intercom system
8. Closed circuit television monitoring
system
9. Alarm system
Responding to Workplace Violence
Responding to Workplace Violence
10. Electronic warning system
11. Create secure/isolated locked reception
area
C. Review safety policies
1. Are employees trained in emergency procedures?
2. Are employees allowed to work late if there is no one else on the premises?
3. Is there a procedure for heightened security if a threat is made?
Responding to Workplace Violence
Responding to Workplace Violence
4. Are procedures in place to be sure security personnel are promptly notified when a potential threat is made?
D. Local law enforcement
1. Establish a relationship with the local police or sheriff's office prior to an incident of violence occurring. Such a relationship may be beneficial in several respects.
Responding to Workplace Violence
Responding to Workplace Violence
a. The law enforcement officers may be able to suggest possible security precautions.
b. The authorities may be able to offer information on the experiences of other companies in the area.
c. The authorities may be more receptive if a complaint is received from the employer concerning violence in
the workplace.
d. Response time may be improved.
Responding to Workplace Violence
Responding to Workplace Violence
III.Offer Assistance to Employees Affected by Workplace Violence
A. Providing counseling for victims.
B. Debriefing session for employees.
C. Providing counseling for employees not directly involved in the incident.
D. Allowing employees to take leave of absence.
Responding to Workplace Violence
Responding to Workplace Violence
E. Instituting new policies to prevent future acts
of violence.
F. Providing counseling to the victim’s family.
G. Providing counseling to the aggressor/assailant.
H. Aiding employees in job relocations.
Violence in the
Workplace
C. Stuart Mauney
RIMS SoutheastEducational Conference
September 14, 2011
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