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Workplace Violence: Liability and Prevention

Learn about the prevalence of workplace violence, employer liability, and strategies for preventing and responding to such incidents.

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Workplace Violence: Liability and Prevention

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  1. RIMS Southeast Educational Conference September 14, 2011 Violence in the Workplace C. Stuart Mauney

  2. Outline • Overview of Violence in the Workplace • Employer Liability for Workplace Violence • Preventing Workplace Violence • IV. Responding to Workplace Violence

  3. Overview of Violence in the Workplace

  4. Workplace Violence Statistics • 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.

  5. Workplace 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.

  6. Workplace 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

  7. Employer Liability • for • Workplace Violence

  8. Employer Liability for Workplace Violence • 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).

  9. 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

  10. 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

  11. 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

  12. 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

  13. Employer Liability for Workplace Violence • 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

  14. Employer Liability for Workplace Violence • 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.

  15. 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.

  16. 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

  17. 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

  18. Employer Liability for Workplace Violence • + Advise applicant of consequences of • omissions or misrepresentations on • application • Gary Mathiason, Terror and Violence • in the Workplace(1994).

  19. 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).

  20. 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

  21. 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).

  22. 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.”

  23. Employer Liability for Workplace Violence • IV. Contractual Liability • A. Company Policies • B. Employee Handbooks

  24. Preventing • Workplace Violence

  25. Preventing Workplace Violence • 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

  26. 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

  27. 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

  28. 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.

  29. 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

  30. 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

  31. 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

  32. 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?

  33. Preventing Workplace Violence • 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

  34. 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

  35. Preventing Workplace Violence • 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:

  36. 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

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