Armed And Dangerous: Protecting Your Employees From Violence

Article by Yendelela Neely Anderson, Celeste Bradley, Waverly D. Crenshaw, Jr. , and Sheldon W. Snipe1

In 2012, a long-time employee of a wholesale fabricator for supplies in Minneapolis was reprimanded for tardiness and poor performance. A week later he was terminated. During his exit interview, the employee drew a weapon, killed one of the managers present, and then went on a shooting rampage throughout the building, killing his co-workers and other by-standers. Local law enforcement later learned that the employee had no history of making threats toward co-workers or his employer, but had recently suffered from a mental illness and was estranged from most of his family.2

1. THE NATURE AND SCOPE OF WORKPLACE VIOLENCE.

   1. What is workplace violence?

      The Occupational Safety and Health Administration defines "workplace violence" as "violence or the threat of violence against persons or property," and includes assault, bullying, intimidation, domestic violence, stalking, sexual harassment, hate crimes, physical abuse, emotional abuse, or other conduct that jeopardizes an employee's personal safety.3 With recent developments in technology, workplace violence has expanded to include cyber-bullying, cyber-stalking, and other forms of on-line harassment.4 It is no longer sufficient for employers to consider workplace violence as an issue between employees. The scope of workplace violence has expanded to include violent acts committed by:

      criminals who are not connected to the workplace. According to the Department of Justice, the individuals most vulnerable to this type of violence are taxi drivers, late-night retail or gas station clerks, and other employees who have access to cash.5 Between 2005-2009, employees were more likely to be subjected to workplace violence by strangers;6 customers, clients, patients, students, inmates, or any others for whom an organization provides services. The individuals most vulnerable to this type of violence include employees in the healthcare industry (doctors, nurses, EMTs, and hospital staff), para-military organizations, flight attendants, and teachers;7 and an employee's family members (spouse or domestic partner). Employees in all industries are vulnerable to this type of workplace violence.8 B. Is Workplace Violence an Ongoing Problem?

      While workplace violence of this kind is on the decline,9 it still occurs far too often and has remained a reality and growing concern among employers, large and small. It has impacted employers throughout the country and in every industry including education, health services, wholesale trade, financial activities, transportation, warehousing, leisure, hospitality, government, retail trade, and professional business services. Almost half of the nation's largest employers (businesses that employ more than 1,000 workers) report at least one incident of workplace violence in a single year.10 The sectors more likely to be impacted by work-related homicides include retail trade (27%), government (17%), and leisure and hospitality (15%).11

      On average, nearly two million incidents of workplace violence occur in the United States each year.12 It is believed that these statistics are likely under-reported as a result of a lack of workplace reporting guidelines and policies, fear of reprisal, and the belief that reporting may not result in any change.13 Despite this under-reporting, Liberty Mutual reports that "assaults and violent acts" are the 10th leading cause of occupational injuries in the United States.14

      Workplace homicides are the most insidious forms of workplace violence and one of the leading causes of job-related deaths in the United States. In a recent study conducted by the Bureau of Labor Statistics, an average of 551 workers per year were killed as a result of work-related homicides.15 In 2010, shootings accounted for approximately 78% of all workplace homicides and approximately 83% of those incidents occurred in the private sector and 17% occurred in the public sector.16

      Additionally, workplace violence impacts genders differently. On one hand, women are more likely to be impacted by workplace violence resulting in homicides and their assailants are more likely to be relatives, nearly all of which are spouses or domestic partners.17 On the other hand, men are more likely to be impacted by workplace violence in the form of robberies.18

      The Occupational Safety and Health Administration (OSHA) has identified several factors that may increase the risk of violence for certain workers. Such factors include "exchanging money with the public, working with volatile, unstable people, and working late at night or in areas with high crime rates."19 Those employees who have the highest exposure to workplace violence are law enforcement personnel, public service workers, delivery drivers, healthcare professionals, customer service agents, and those who work alone or in small groups.20 Between 2005-2009, law enforcement occupations (48 per 1,000) and mental health occupations (21 per 1,000) had the highest average annual rates of workplace violence in the country.21

      OSHA has issued voluntary guidelines and recommendations for employers in high risk industries such as for-hire drivers, late-night retail establishments, and health care and social services.22 These guidelines provide stakeholders at every level of an organization with necessary information to recognize and remediate workplace violence.

   3. What is the impact of workplace violence?

      Workplace violence impacts an employer's bottom-line and the continuity and overall productivity of the workforce. The economic costs associated with workplace violence are staggering. According to a recent report issued by Liberty Mutual, workplace violence in 2010 cost employers approximately $640 million dollars.23 It affects the number of workers' compensation and medical claims filed by employees as well as the amount of leave taken to address post-incident physical and/or psychological injuries. Moreover, it also diverts company resources for post-incident activities (e.g., focusing on public image, and meetings to stabilize and increase the morale of the workforce), and contributes to a loss of sales due to work stoppage, and debilitating litigation costs.24 Estimates of the cost of a single incident of workplace violence range between $250,000 to $1 million dollars.25 Additionally workplace violence is projected to result in approximately 1,751,100 days of leave each year, or over $55 million dollars in lost wages annually.26

      The non-economic costs associated with workplace violence are equally staggering and nearly impossible to measure. These include loss of productivity, decreased morale, higher rates of turnover and loss of current and potential business due to public perception.27

2. THE LEGAL LANDSCAPE

   One of the leading costs associated with workplace violence is litigation expenses. In accordance with the Occupational Safety and Health Act, employers have a duty to maintain a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees."28 While there is no private right of action against employers under the Act, an employer who repeatedly fails to comply with this duty may be fined up to $70,000 for each willful violation and may be subject to criminal penalties.29

   The lion's share of litigation involving workplace violence is in negligent hiring, retention and supervision cases.30 In recognizing a claim of negligent hiring/retention, one court explained the theory of liability as follows:

   "An employer may be liable to a third person for the employer's negligence in hiring or retaining a servant who is incompetent or unfit. Such negligence usually consists of hiring or retaining the employee with knowledge of his unfitness, or of failing to use reasonable care to discover it before hiring or retaining him. The theory of these decisions is that such negligence on the part of the employer is a wrong to such third person, entirely independent of the liability of the employer under the doctrine of respondeat superior...."31

   "The employer's knowledge of past acts of impropriety, violence or disorder on the part of the employee is generally considered sufficient to forewarn the employer ... that he may eventually commit an assault."32

   While Courts have consistently held that employers are not vicariously liable for workplace violence,33 employers may still be found liable for foreseeable acts of violence. The following is a synopsis of relevant cases:

   In Duffy v. Technicolor Entertainment Services, Inc., No. B196126, 2009 WL 204410 (Cal. App. 2 Dist., Jan. 29, 2009), the Plaintiff was assaulted at home by a co-worker. The employer knew that the co-worker had violent propensities in the workplace, failed to discipline the co-worker for previous incidents of workplace violence, and had reason to believe that the Plaintiff would suffer injury as a result of direct threats made by the co-worker. The Court upheld the jury's verdict that the employer had negligently retained and supervised the co-worker when it failed to prevent the incident from occurring. I Doe III v. the State of Washington, Department of Social and Health Services, Western State Hospital, No. 35130-7-II, 2008 WL 929885...