Violence in the Workplace 01-06-2006

I. WHAT DO WE MEAN BY WORKPLACE VIOLENCE?

Workplace violence refers to more than just the latest episodes of someone "going postal" and machine-gunning everyone on the shop floor. It encompasses all the violent acts and threats which take place within the workplace, whether committed by employees, ex-employees, intruders or the people you serve.

A. Prominent Sources of Violence By Employees

Failed workplace relationships
"Disgruntlement" with management
Dangerous employees
Harassment
Abuse of customers/clients

B. Prominent Sources of Violence by Non-Employees

Robbery or crime
Domestic violence
Clients/customers

II. MAIN SOURCES OF EMPLOYER LIABILITY

Violence means injuries (unless your problem employee is just as incompetent at being violent as he is at doing his job). We all know that in today's climate, injuries mean lawsuits. Unfortunately, the perpetrators of workplace violence tend not to be among the more affluent, and intentional acts tend not to be covered by homeowner's insurance. Employers may therefore expect to be targets of plaintiffs looking for deep pockets. There are a variety of claims the employer may expect to see from the injured, the pretending-to-be-injured, the government, and even from the violent employee.

Workers' Compensation

Elements of Compensability

Injury must arise out of employment.
Injury must be suffered during the course of employment. Focus upon limits of time and space; injuries which occur during working hours and where the employee works are likely to be found within the scope, while injuries during non-working hours and away from the work place are not.
The act must not have been committed solely for personal (i.e. not work-related) reasons. In a random act of violence by a stranger where the motive is unknown, then worker's compensation will probably be applied.

For example, the assault of an employee by a stranger in the company parking ramp while leaving work has been held to be covered by workers' compensation. The injury arose out of her employment (she was just leaving work), it was within work-related limits of time and space (within working hours on employer property) and was not committed solely for personal reasons (the assailant didn't even know the employer). In other cases, workers' compensation was not applied where an employee was shot in her own driveway several hours after work by a co-employee dissatisfied with their personal relationship. The injury did not occur within the scope of employment (hours after work at the employee's home) and was committed for solely personal reasons (act of a jealous admirer).

Exclusive Remedy.

Where workers' compensation applies, it is the only remedy the employee has against the employer. In high-damage cases, it may be to the employer's advantage for workers' compensation to apply, as it is insured against and limited to economic damages.

B. Civil Liability

Vicarious Liability

When an employee acts within the scope of employment, then the employer is automatically and vicariously liable for any injuries caused to others by the employee's negligence.
The rationale for this rule is that the employer gets the benefit of what the employee does while working, so the employer should also carry the risk of injury to others due to negligence during that time.
The employer is not liable just because someone is injured; an employee must have acted negligently in the scope of employment.
Who is an employee?
- The employer of an independent contractor is generally not liable for the contractor's negligence.
- A loaned employee is treated as the employee of the employer who has control over the employee and whose interests are being advanced by the employee at the time of the negligence.
- The joint employment rule.
When is an employee acting within the scope of employment?
- Not strictly limited to the performance of job duties.
- Even intentional torts like battery may be within the scope of employment.
- The injury must occur within work-related limits of time and space.
  - What was the employee doing immediately prior to the act causing injury?
  - Is that something you would expect the employee to be doing as part of the job?
  - Was there a deviation from employment duties?
  - The dual purpose doctrine.
- The act causing the injury must be reasonably foreseeable to the employer from the nature of the employment and the duties relating to it.
  - Employees with access to homes.
  - Employees in trusted positions.

Some examples:

Your employee punches a customer during an argument while making a delivery.

Your employee sexually abuses a client during counseling.

Your employee is in a car accident on the way back to work from lunch.

Your employee is in a car accident while making a delivery.

Your employee defames a former employee.

Your employee, traveling on business, passes out drunk while smoking and completing an expense report and burns down the hotel.

Your resident caretaker forgets to salt an icy walk.

Acts of violence are by definition intentional and, unless the employer is a loan shark, rarely serve any purpose of the employer. Nonetheless vicarious liability will be applied if the employee was acting in connection with his employment at the time the violence occurs and the type of violence is foreseeable from the nature of the job.

Negligent Hiring/Retention

Unlike vicarious liability, this is a claim that the employer has actually done something wrong and caused injury to another.
This claim is sometimes brought in an attempt to trigger the employer's insurance coverage.
The essence of this claim is that you negligently put a dangerous person in a position where injury to others was foreseeable.
- The employee must have "dangerous propensities."
- The employer must either know or have reason to know of the employee's dangerous propensities.
  - The degree to which you need to investigate a prospective employee depends upon the duties and risks of the job.
  - Knowledge of your supervisory employees is considered knowledge of the employer.
  - Possible ADA concerns.
  - The employer must nonetheless put the employee in a situation where harm to others from the employee's dangerous propensities is reasonably foreseeable.
- This claim is frequently seen in conjunction with claims involving sexual harassment/abuse. While Minnesota decisions on this issue conflict, it appears that this claim cannot be made except when there is a physical, as opposed to emotional, injury.

Negligent hiring/retention is one area where the courts seem to be giving employers the benefit of the doubt. In one instance, the rehiring of an employee who had just served a sentence for killing a co-employee was found not to be negligent even after the employee killed another co-employee. The employee's dangerous propensities and the employer's knowledge thereof were not in question, but the employee's position as a janitor was held not to put him in a special position where harm to others was foreseeable. Liability has been imposed where dangerous employee's job was resident manager of an apartment and the employee used his pass-key to attack a tenant. The employer had failed to diligently check the employee's background, when doing so would have uncovered violent felonies.

Negligent Supervision

The employer must use reasonable care to supervise the employee while the employee is on company premises or using company property.

Discrimination Claims as Result of Preventative Action

"Protective" Rules
- Refusing to hire women for jobs which face heightened risk, for example, will probably subject an employer to claims of discrimination in hiring.
Actions Against the Potential Sources of Violence
- Firing or refusing to hire an employee with a history of manic behavior, for example, may raise issues of disability discrimination. Of course, the ADA does permit employers to make adverse employment decisions based upon an employee's inability to perform essential job duties with reasonable accommodations or if an employee or applicant constitutes a direct threat to safety. Actions taken against an employee to prevent or punish workplace violence may also engender a dispute under the employee's contract or collective bargaining agreement. It is imperative to seek legal advice before taking any action against an employee or applicant based upon any perceived disability.

C. OSHA

General Duty Clause

A condition or activity in the employer's workplace presents a hazard of death or serious injury to its employees.
That condition or activity was recognized as a hazard by the employer or within the employer's industry.
Feasible means existed to eliminate or materially reduce the hazard.

OSHA's attempt to cite an employer under the general duty clause was unsuccessful where the employer was a property management company whose employees had been subjected to threats, vandalism, etc. from residential tenants and who had communicated their fear to the employer. However, a general duty violation was not found. It was noted that OSHA usually applies to processes or materials that are inherent in the workplace and that an employer may not recognize the potential for a particular violent incident and may reasonably believe that the police could handle a specific threat. It was also noted that apartment management was not identified as an industry with a high risk of violence.

Special "Voluntary" Guidelines for Certain Industries

Health Care
Retail Stores Open at Night

III. SOME EMPLOYER PRECAUTIONS AGAINST VIOLENCE

Analyze workplace for specific risks, such as location of workplace within a high crime area, presence of cash on the premises, nighttime hours, exchange of money with the public, employees working alone or in small numbers, etc. Implement appropriate security measures.
Check references when hiring. Obtain and check conviction histories (except for public employers in Minnesota, who are restricted by statute in their ability to do so). You may also wish to check arrest records; however, you cannot use them to routinely exclude applicants without risking the wrath of EEOC. EEOC's policy manual directs that arrest records may be used to exclude where the applicant likely committed the conduct alleged in the record, the conduct is related to the job at issue and the arrest was relatively recent. The degree of investigation you do should be commensurate with the potential dangers associated with the position.
Ask applicants questions about violent or threatening disputes with supervisors or coworkers in prior positions.
Train employees to report suspicious, harassing or threatening behavior. Ensure that no reprisals are taken against employees who report violence or threats.
Have and enforce work rules against threatening behavior and violence.
Designate an incident management team drawing upon available resources which may include management, personnel, legal and security resources. The team should have an advance plan for dealing with a situation involving violence, including how communications with police, medical personnel, supervisors and employees should proceed and how any media inquiries should be handled.
If there is a threat or indication of violence, review workplace security and review personal protection issues (both at work and away) with any targets or threatened violence.
Safety education seminars for employees may be available from local law enforcement.