Workplace Violence
Workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors. Homicide is currently the fourth-leading cause of fatal occupational injuries in the United States. According to OSHA, nearly 2 million American workers report having been victims of workplace violence each year and many cases go unreported.
What is the Cost of Workplace Violence?
According to Insurance Journal Magazine, victims of workplace violence miss 1.8 million days of work every year. Also, the annual cost of workplace violence for employers is estimated to be nearly $121 billion, according to statistics from the Department of Justice and the National Institute for Occupational Safety and Health. In a 2016 case out of California, Yowan Yang v. ActioNet, Inc., an employee was viciously attacked by his co-worker and successfully sued the company. He was awarded a 2.4 million dollar verdict plus another five million in punitive damages.
This author achieved a three million dollar settlement against an apartment complex and temporary employee hiring agency where a maintenance worker with an extensive criminal record was hired and raped, robbed and attempted to murder one of the female tenants. In another case, this author achieved a confidential settlement where an employee was attacked by another employee who had a history of violence and hatred for gays. Each attack could have been avoided with safer hiring practices. The reality is that the cost to employers – and to the victims – can be enormous.
Employer Liability for Workplace Violence
Employer liability for workplace violence can be derived from a number of different theories under Virginia law. These theories include negligent hiring, negligent retention, negligent supervision, respondeat superior (the employee committing violence while being in the scope of employment), failing to provide adequate security or take reasonable safety measures, breach of contract, and failing to have adequate anti-harassment and other policies in place.
How Can an Employer Be Liable for Violence in the Workplace?
A classic example of employer liability is negligent hiring – something that can be prevented with proper hiring practices. The tort of negligent hiring was first recognized by the Supreme Court of Virginia in J. v. Victory Tabernacle Baptist Church, 234 Va. 206, 372 S.E.2d 391 (1988). In Victory Tabernacle, a mother brought an action against a church and its pastor, alleging her ten-year old daughter had been raped and sexually assaulted by a church employee, and that the church knew or should have known when it hired the employee that he had recently been convicted of aggravated sexual assault on a young girl, and that he was instructed not to be involved with children as a condition of his probation. 234 Va. 206, 372 S.E.2d 391 (1988).
Preventing Workplace Violence
What are Proper Steps in Hiring to Prevent Workplace Violence?
The first step toward preventing the hiring of dangerous or unfit employees is to require all employees to fill out an employment application. The application also provides a starting point for conducting an independent investigation into the employee’s complete background. The application should include:
- A list of prior employers, including the type of employment, length of time with that organization, reasons for leaving, with address and telephone numbers of prior employers.
- Names of references, starting with relationship to the applicant and the length of time known.
- Statements as to whether the applicant has been convicted of any criminal offense.
- Gaps in employment should be questioned (they may show a period of incarceration)
Other steps to be employed include conducting criminal record checks, gathering employment references, for some jobs obtaining credit reports, obtaining driving records where relevant to the job and engaging in various tests as applicable.
What Policies Should Be in Place to Address Workplace Violence?
It is critical for employers to implement a basic disciplinary system that includes the following:
- Identify what is expected of employees and what behavior will not be tolerated.
- Use verbal counseling and written warnings first unless the behavior is especially egregious. Be sure to document.
- Where serious allegations or incidents have arisen: Investigate, document, confront, counsel, discipline, call your attorney, discharge if necessary.
- Mandate the reporting of harassment or other unacceptable behavior. Have an annual statement signed by all employees as to whether he or she is aware of any harassment or bullying in the workplace.
- Mandate the ongoing reporting of any criminal or driving convictions, as may be applicable to the job or to preventing workplace violence.
Other polices include ones that address: threats against employees, building security, no weapons on the premises. addressing visitors in the workplace, ensuring a drug and alcohol free workplace, and an enacting a clear anti-harassment, discrimination and retaliation policy.
What Else Should Employers Do to Protect Employees and Customers?
Be sure to follow your policies once put into place. Train all management employees on the enforcement of the policies. Consider training for all employees in the event of a workplace violence situation – active shooter training may start to become the standard of care.
Have an alarm system for the building – ensure employees understand the difference between a fire alarm and a “workplace violence” situation alarm. Consider putting a surveillance system in place in certain areas – especially the lobby. Have a locked door entrance system in place if possible (for non-retail employers).
What are Safe Practices for Terminating a Problem Employee?
Pack up all of the employee’s personal items prior to giving him or her notice of termination. Provide reasons for the termination – if the employee understands the reasons then this is normally better than being given no reason. Consider having police or at least a hired security guard present. Be sure to collect any keys or card keys or any security devices from the terminated employee. Advise the terminated employee that he or she is not to return to Company premises. Let other employees that the employee no longer is with the Company and make sure that employees know that terminated employees are not permitted back on Company property via a solid building security policy.
When Should Law Enforcement Be Involved?
It is best to have a very good relationship with your local police department (even if you have a security guard on duty). Get to know the local police – some establishments offer free coffee or the like. Contact the police at the very first sign of an employee becoming agitated. Have a system in place for indicating to a manager or Human Resources representative to make the call. Always err on the side of calling the police if the situation is getting heated. Tell the agitated employee that if he or she does not settle down that the police will be contacted. Ask the employee to please take some time out – take deep breathes, maybe even ask the employee to just take some time away from the office and leave the premises.
When police have not been involved but there have been issues with an employee, including concerns about having terminated an employee, make sure the police are aware of the situation. This author also has written many letters to terminated employees on behalf of employers advising the employee not to return to the premises – and advising that the police will be contacted – unless he or she has obtained prior permission to return.
Learn More About Preventing Workplace Violence
By implementing proactive policies, and engaging employees in the process, employers can help stymie the rising costs and incidents of violence in the workplace. Contact us to learn more about what employers can do to prevent workplace violence.