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Workplace Violence:Identification, Prevention and If the Worst Happens, Evaluating Exposure
Brent B. YoungJohnson City, [email protected]
2www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Violence In Our Society
• Newtown
• Aurora
• Intersection of Labor & Employment
3www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Overview
• Problem Confronting Employers – Why is important to be proactive?
• Potential Exposure
• Implementing Workplace Violence Prevention Programs
4www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
• What is Workplace Violence?− Employees directing violence at other employees or
employers− Customers, patients, or visitors violent against
employees− Domestic related violence spilling over into the
workplace− Property directed violence− Terroristic violence
Workplace Violence
5www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
• In 2009, 572,000 nonfatal violent crimes against people 16 years or older while they were at work or on duty
• Down from 6 in 1,000 violent crimes per 1,000 employed persons in 2002 to 4 in 1,000 in 2009
Workplace Violence
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• Where are the highest risks of workplace violence?− Postal workers get a bad rap− Late night retail− Taxi drivers− Police officers− Healthcare workers
Workplace Violence Impact
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• Economic costs are enormous
• Lost productivity
• Work disruptions
• Employee turnover
• Litigation
• Health problems in employees – insomnia,
hypertension, depression
Workplace Violence Impact
8www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Hartford Distributors
• August 3, 2010• Killed 8 Co-Workers• Motivated by perceived
discrimination• Had complained that he found
a drawing of noose and racial epithets on bathroom wall
• Terminated for theft of beer• Started rampage while being
escorted out following union grievance meeting
Workplace Violence
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Fort Hood, TX• November 5, 2009• Among the 13 killed were 12 soldiers, one
of whom was pregnant, and a single Army civilian employee.
• 30 others were wounded and required hospitalization.
• At approximately 1:34 p.m. the shooter, Nidal Malik Hasan, entered his workplace.
• According to eyewitnesses, he took a seat at an empty table, bowed his head for several seconds, and then stood up and opened fire.
• Hasan reportedly jumped onto a desk and shouted: "Allahu Akbar!", before firing more than 100 rounds
Workplace Violence
10www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Austin IRS Office
• Joe Stack flew plane into IRS office on February 18, 2010
• Pilot died in crash. One employee died and others injured
• Set fire to his home before crash.
• Stack vehemently opposed the IRS
Workplace Violence
Legal Implications of Workplace Violence: Potential Exposure
12www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Workers’ Compensation
• Workers’ compensation is the exclusive remedy for employees when the injury “arose out of” and “in the course of employment”
• Compensability of workplace assaults− Employment relationship places employee at
increased risk of harm − Employment-related disputes− Intentional tort / Harassment
Legal Implications
13www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Negligence-Based Theories
• Hiring
• Retention
• Supervision
• Training
Legal Implications
14www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Legal Issues With Criminal History Checks
• Employers between rock and hard place− Americans with Disabilities Act− Negligent Hiring
• FCRA Release
15www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
TN Workplace Violence Act
• Tenn. Code Ann. § 20-14-101• Temporary Restraining Order• Requires violence or credible threat of violence to be
carried out in workplace
16www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Guns In Parking Lots In Tennessee
• Safe Commute Act• Senate Bill 142• Moving on to the House• Interesting Opposition
17www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Americans with Disabilities Act (ADA)
• Limits pre-hire questioning and screening techniques used by employers to identify potentially violent employees
• Employers can also be liable for employment termination decisions if due to a disability
• Qualification standards and physical and mental requirements for employment are allowed if they are necessary and substantially job related
18www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
OSHA Requirements
• General Duty Clause
− An employer is obligated to furnish to each of its
employees employment at a place of employment
which is free from recognized hazards that are
causing or likely to cause death or serious physical
harm to its employees.
• Applies to all private employers who are engaged in
business affecting commerce
19www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Is Workplace Violence a “Recognized Hazard?”
It all depends
• If it cannot be foreseen or controlled by the employer, it would not be a recognized hazard
• OSHA has equivocated.
Addressing Workplace Violence
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Addressing Workplace Violence
• Identifying Risk Factors for Violence:− Working directly with volatile people, especially those
under the influence of drugs or alcohol or have a history of violence
− Long waits for service− Overcrowded, uncomfortable waiting rooms− Working alone− Inadequate security− Lack of staff training− Poorly lit corridors, rooms, parking lots, and other
areas
22www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
What to Do?
Six Steps to Prevent Workplace Violence
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STEP ONE:
• Establish a Workplace Violence Prevention Team to create, communicate, and implement all violence prevention plans, policies, and guidelines
24www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
STEP TWO: Complete a Violence Vulnerability Audit
• Analyze all premises, systems, employees, and customers who interact with employees
• Also look at security systems to assess preparation for violent incidents
25www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
STEP THREE: Establishing Policy and Procedures
• Adopt a formal, written Workplace Violence Policy• Include the Policy in your procedures manual• Implement results of the Vulnerability Audit and the
planned security procedures for responding to violent incidents
• Delineate prohibited behaviors/actions and warning signs
• Establish levels of discipline• Establish an employee assistance program to help
employees deal with stress-related problems
26www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
STEP THREE: Establishing Policy and Procedures (Cont.)
• Five components to an effective violence prevention program:− Management commitment and employee involvement− Worksite analysis− Hazard prevention and control− Safety and health training− Recordkeeping and program
evaluation
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STEP FOUR: Communicate the Policy and Procedures
• All employees must receive a copy
• Educate all employees on the types of violence and warning signs
• Tell workforce how to report a threat or act of violence
28www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
STEP FIVE: Training
• Goal: To educate all employees and supervisors to spot warning signs and what to do once they recognize them
• Training methods should be different and increasingly detailed for employees, managers and supervisors, and Prevention Team members
29www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
STEP SIX: Put the Program Into Action
• Thorough pre-employment screening (Reexamine and Reevaluate)
• Drug Testing
• Following the interview, thoroughly check references
30www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
STEP SIX: Put the Program Into Action
• Terminate employees in the proper way• Take all threats seriously (Investigate—interview all
witnesses, take written statements, and obtain a complete version of the facts from the accused employee)
• Maintain strong and workable employee communications network. Establish a confidential “hotline” for employees to report concerns and/or troubling incidents
• Conduct opinion and attitude surveys to ascertain how employees feel about the work environment and encourage participation of all
31www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC