Wednesday, May 16, 2007

Preventing and Dealing with Workplace Violence

To maintain a safe workplace, HR leaders must consider proactive measures such as screening and adopting appropriate policies. Sometimes violence erupts anyway, however, and companies need to be prepared to deal with the situation.

By Philip A. Toomey

Hardly a week goes by without news of another episode of workplace mayhem. The sensational incidents, and many other less serious but still troubling episodes of violence that don't make headlines, are personal tragedies for all involved, including the employers.

They can also have far-reaching legal repercussions for the companies where incidents of violence occur. That's because employers, under federal OSHA law and an array of state statutes, have an affirmative obligation to maintain a safe workplace.

If they have failed to take the reasonable precautions to maintain a safe workplace as required by law, employers can be held civilly liable for workplace violence.

Violence can erupt in the workplace between co-workers as a result of disputes on the job or because of a consensual romantic relationship that goes awry.

Or violence may spill into the workplace from outside, stemming from a conflict that has no connection with work but that involves an employee and an outsider, such as an abusive spouse.

In either case, if an employee is injured on the job, the employer may be at fault for negligent hiring or supervision or for failing to take steps to guard against a known threat of violence.

Preventive Measures

The first step an employer should take to ensure a violence-free workplace seems simple enough: Avoid hiring people with a history of violence.

That doesn't mean you have to subject every employee to a full-fledged criminal background check. But the potential liability that an employer can face from having a worker with a history of violence on the staff underscores the importance of being proactive in screening job applicants, as appropriate for each position.

Verifying a prospective employee's work history, checking with references, and for those who will fill more sensitive positions, undertaking a more thorough background investigation, can help an employer detect potential troublemakers before they are hired.

In one instance, a Florida employer knowingly hired an employee with previous convictions of abuse to females. The employee then developed a romantic relationship with another employee. Did the employer have an obligation to disclose to the girlfriend the prior knowledge it had regarding the employee's propensity to engage in violent behavior?

The employer took the position that this was private information and it didn't have the consent of the employee to inform the woman, and it was a personal relationship being carried on between consenting adults.

The end result was that the employee assaulted the woman and killed her.

Her children sued the employer, claiming that possession of that information without disclosing it to their mother put her in a dangerous situation, and they won. Is there an employer duty to warn? This is still being decided in the courts.

An employer also may have an obligation to control the conduct of outsiders who are invited onto the business premises or who show up at the workplace.

Obviously, it is not possible to conduct background checks on visitors, but reasonable steps to control access to the premises and exclude those who pose an obvious threat are actions that every business should take.

In a closed environment, it is acceptable to indicate that an employee's spouse, friends and family members are not allowed to visit absent supervision. In a more open environment, like a retail store, employers should talk directly with employees to be made aware of any spousal or relationship issues, such as a restraining order, and whether or not they want this to interfere with their work.

These precautions offer no guarantee that problems won't occur. But an employer that has exercised reasonable diligence can avoid being held to account later for doing nothing.

Another preventive step that every business should take is to issue a written policy on workplace violence. The policy should state in no uncertain terms that violence, as well as harassment and other inappropriate conduct that can often spark physical altercations, will not be tolerated.

The policy should also explain what employees can do if they feel intimidated or threatened.

Once a policy is adopted, the employer has an obligation to notify workers and supervisors about the policy and more importantly, to provide instructions on how to report incidents or concerns in a confidential manner.

Instructing employees on ways to prevent and deal with workplace violence can be included as a component of the company's broader human relations training that addresses related issues, such as sexual harassment.

Once training is completed, an employer has an ongoing obligation to monitor the work environment.

Acts of violence can start with what may appear to be minor incidents of verbal abuse, intimidation, bullying or other forms of verbal and non-verbal aggression. An employer should never dismiss conflicts between employees as a personal issue between the two.

Having a reporting mechanism in place that enables employees to bring any concerns about their co-workers to the attention of management will give the employer a better chance of defusing a potentially dangerous situation before it erupts into violence.

In one company, an IT employee was constantly being challenged by sales people to keep the computer system up to speed with automated sales calls. While confrontations became heated at times, they were normally handled in a professional manner.

Eventually the tension built, and in a hallway exchange, the IT employee physically assaulted the sales manager.

This type of problem could have been avoided had the employer been more observant and diligent, and instructed separate departments not to interface in the absence of a supervisor.

The obligation to observe also requires upper-level management to pay attention to how line supervisors interact with the employees whose work they oversee. Supervisors who make inappropriate comments, are overly aggressive in their management style or have a tendency to humiliate workers can often engender deep-seated resentment, not only directed at them, but toward the company as a whole.

An official complaint mechanism can help bring such problems to the attention of management before a conflict festers. But even if the employer learns informally, for example, through word of mouth or through an e-mail or Internet posting, that an employee has made threats against a supervisor, the employer has a responsibility to take appropriate security measures.

The duty to observe requires a delicate balancing act on the part of employers. While fulfilling their obligation to maintain a safe working environment, employers must respect the employees' rights to privacy, free speech and association.

The two interests sometimes clash, for example, when it comes to monitoring dating relationships and romances between co-workers. Such relationships are fraught with peril for employers especially when one or both of the paramours are married or in committed relationships with others.

The dating activity may take place during off-hours but the repercussions can erupt in the workplace and endanger innocent employees who happen to be in the wrong place at the wrong time.

If an employee is subject to romantic overtures from a co-worker that rise to the level of harassment, or that are tinged with threats of violence such as rape, the employer is obligated to take disciplinary action against the aggressor and may also need to obtain a restraining order and provide additional security.

In some cases, an employee or third party might make non-specific threats of violence, for instance by telling others, "I'm going to go postal." If the employer hears credible reports of such threats that raise a generalized concern about safety in the workplace, the employer must take steps to address the threat.

Depending on the circumstances, the response may include counseling for the employee or termination and a restraining order to keep the former employee from returning to the workplace.

When Violence Erupts

At the earliest indication that a troubled employee is placing others in the workplace at risk, the employer must take corrective action. A warning, temporary suspension or other disciplinary sanction may suffice if the incident is relatively minor and the employee has an otherwise unblemished record.

Termination is in order for more serious violent incidents. In such cases, however, termination alone may not be sufficient to absolve the employer of its obligation to safeguard the workplace from threats of violence.

An employer may need to go to court to obtain a civil restraining order to prevent a former employee, or any other person who might threaten violence in the workplace, from returning to the business premises and immediately surrounding areas.

A restraining order can also specify that the individual may not call or send e-mails to the workplace. In some cases, the order may also extend protection to threatened employees while they are at home or traveling to and from work.

In emergency situations, the laws in most states allow a judge to impose a temporary restraining order that will remain in effect for a limited period of time while the parties await a formal hearing on a permanent order.

A civil restraining order authorizes the police to arrest anyone who ignores the court-imposed restrictions, for example, by showing up at a business that has been declared off limits. Violations of civil restraining orders can lead to criminal charges against the offending party.

At that point, the employer may request a no-contact or stay-away order in conjunction with the criminal case.

These orders are similar to civil restraining orders, but since they are issued in the context of a criminal case, the consequences of a violation can be much more serious. The violator can be charged with additional criminal counts for witness tampering or intimidation, or in some cases obstruction of justice.

Former employees who have exhibited violent behavior and have demonstrated that they will not be deterred by court papers may require the employer to take further action.

Employers are not expected to build an impregnable fort around their worksites. But employers have to take reasonable steps. In some cases, that might mean an employer should hire security professionals or install extra security devices, such as controlled-access doors or closed-circuit cameras, to keep potentially violent intruders off company premises.

And the company mailroom should be alerted to be on the lookout for incoming packages addressed to those who have been threatened with violence. Any suspicious package from unidentified sources that may contain an explosive device should be reported to the police.

Dealing with the Police

Police agencies, of course, are key partners for employers faced with an episode of violence. But it's important to keep in mind that they have finite resources and limited tools with which to deal with a person who is potentially violent but hasn't yet acted.

When the police are called to a workplace to deal with a violent employee, they will want to know early in their investigation what the employer has previously done to deal with the situation. In many cases that will dictate what sort of help they can provide.

One of the very first things they will ask for is a copy of any restraining orders. If there are any, the police will have far more leverage over the individual and can act immediately to address a threat of violence.

To ensure that police and prosecutors can most effectively work with the company on the case, the employer should designate a single individual to be the point of contact with law enforcement authorities. That individual should be readily available at all times.

Likewise, the designated representative should obtain the investigating officer's cell phone number and should know how to directly contact the commander on each watch so that if any further incidents occur at any time, the employer and police can establish immediate contact with each other.

The employer must keep in mind that the police will have many other matters simultaneously on their docket. Don't assume that they are paying close attention to your problem. They may need to be regularly updated about ongoing situations, and prompted to take action as the need arises.

Police will undoubtedly be grateful to be dealing with an employer that has systematically addressed the problem and has already taken every precaution to protect employees. More importantly, the police will be able to provide more effective assistance to employers who have done their homework and have put in place a plan to deal with workplace violence before it strikes.

Philip A. Toomey is managing partner of Los Angeles based Artiano, Guzman, & Toomey, LLP. He specializes in employment law and may be reached at This article is not intended to be legal advice.

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