Question: What do a pawn shop owner, convenience store clerk, psychologist, two sanitation managers, tavern owner, fisherman, cook, two cab drivers, furniture store owner, restaurant manager, maintenance supervisor, video store owner, and postal carrier have in common?
Answer: According to the Centers for Disease Control ("CDC"), all were murdered at work in the same week.
No one is surprised by reports of violence. Television news is dominated by stories of violence, often drug related, in the streets of our cities and our neighborhoods. Still, one place people have traditionally felt safe is their workplace. As discussed in this article, this feeling may be misplaced.
Workplace Violence
A recent Time/CNN poll reports that nearly 40% of Americans view workplace violence as a growing problem, and the statistics seem to bear them out. According to the CDC, 15 people are murdered at work each week. Homicide was the third leading cause of death in the workplace between 1980 and 1989; in 1992, it was the leading cause. Most deaths occurred in connection with robberies, but nearly 13% occurred in an office or factory, the result of work disputes between workers, customers, and clients, and about 4% of the time, the result of personal disputes, typically involving a female worker's current or former husband or boyfriend. These numbing statistics do not even begin to account for lesser forms of violence, such as fighting, threats or harassment. According to a 1993 survey by Northwestern National Life Insurance Company, 2.2 million workers are physically attacked, 6.3 million workers are threatened, and 16.1 million workers are harassed each year.
The threat of violence poses more than a safety issue to employees; under evolving law, employers face potential legal threats as well. The potential liability of an employer may vary widely depending on the law of a particular state and the employer's relationship to the individual committing the violent act and the victim, but it provides significant incentives to an employer to take steps to reduce the risks to employees in the workplace.
Legal Concerns
In the past, employers generally were liable for the wrongful acts of their employees only when those acts were committed within the scope of the employment. Because violent acts were normally considered outside the scope of employment, this principle (known as respondeat superior) generally meant employers would not be liable for an employee's violent acts. This rule has been modified, and employers may now be liable under a variety of circumstances for acts that occur outside the scope of employment but are connected to the work environment. There are several bases for concern:
Duty to Provide a Safe Workplace. At both common law and under the Occupational Safety and Health Act, employers are required to provide a reasonably safe workplace for their employees. While there are no specific regulations for preventing occupational homicide, OSHA has begun issuing citations under its general duty clause-- which requires provision of a workplace free from recognized serious hazards -- to employers who fail to protect their workers from being assaulted. The threat of citations exposes employers to monetary penalties and government-ordered abatement requirements.
Worker's Compensation. Typically, workplace injuries will result in liability under worker's compensation statutes. Although there are exceptions for deliberate actions, worker's compensation liability often defines the extent of an employer's liability for employee victims of violence. One Maryland court has held that an employee claiming she had been physically assaulted by a co-worker was barred from suing for negligence by worker's compensation law. However, a court in Minnesota has held that state's worker's compensation law did not bar a wrongful death action against an employer for negligently retaining an employee with a criminal record who threatened a co-worker and later shot and killed that worker after work. Moreover, worker's compensation does not apply when non-employees are injured.
Negligence. Maryland, like many other states, requires employers to use reasonable care in selecting and retaining employees, and recognizes a cause of action against an employer for negligently hiring or retaining an employee who is unfit to perform the assigned duties and who consequently injures a third person. This tort is different than respondeat superior because it applies where the injury caused is not within the scope of the employee's employment. In these cases, the central question typically is whether the employer knew or should have known that an employee was potentially dangerous. If an employer negligently hires or retains an employee, and an individual is harmed, the employer may be liable under this theory.
Anti-discrimination Laws. Equal employment opportunity laws such as Title VII can also provide a basis for liability. For example, an employer's failure to take appropriate steps to protect employees from racial or sexual harassment could subject it to discrimination claims. While remote, an employer's policies toward protecting, or not protecting, its employees could theoretically be subject to attack if an adverse impact can be demonstrated and no business justification for the policy can be shown.
Unionization. Finally, the failure to address workplace safety concerns could lead employees to seek union protection. According to Abraham Maslow's hierarchy of needs, safety is a fundamental concern. If this need is not being met, among other things, an employer may find its employees turning to outside sources, including unions, for help.
Indeed, the Service Employees International Union (SEIU), has developed sample contract language to protect workers from on-the-job assault. Pronouncing negotiation of specific contract language "one of the most effective ways" to ensure a safe workplace, the SEIU's sample reads:
The employer shall develop written policies and procedures to deal with on-the-job assault. Such policies must address the prevention of assault on-the-job, the management of situations of assault, and the provision of legal counsel and post-traumatic support to employees who had been assaulted on the job by clients or the public.
The SEIU's proposal goes on to discuss staffing levels, the installation of security devices, employee training, and a proposal that the employer assist in prosecuting offenders. The SEIU's proposal concludes by expressly disclaiming any union responsibility for assuring workplace safety. Surprised?
Don't be. Just as a failure to act can lead to liability, actions taken by an employer to address risks of workplace violence can create liability for it. Poorly considered or implemented security measures could result in claims of intentional infliction of emotional distress, invasion of privacy, defamation, false imprisonment, assault and battery, wrongful discharge, and discrimination, to name a few. Moreover, if the employer assumes a responsibility it is not legally charged with already, it may be negligent if it does not adequately fulfill that responsibility.
What Can Employers Do?
It's probably not possible to eliminate all workplace violence; however, some forms of violence are predictable and preventable. Generally, employers should work to eliminate or reduce those risks.
From an employer's perspective, two categories of risk should be considered: risks among employees, and risks from or to outsiders (family, friends, customers, and the general public). Employers should examine their workplaces for factors suggesting the risks of violence. In this regard, employers should consider who their employees come into contact with to determine potential risks and duties. For example, there is a heightened obligation to exercise due care in selecting and retaining employees when the employee deals with the public or certain groups, such as children. Likewise, the following factors may increase the risk from non-employees: exchanging money with the public, working alone or in small numbers, working late night to early morning hours, or working in high crime areas.
The next step is to consider what, if any, steps should or can be taken to address the potential threats or risks identified, in light of applicable law. The employer should consider its duties under state and federal laws and evaluate what additional duties, if any, it may be assuming or creating by any particular actions it may take. Without suggesting that an employer should ignore hazards or threats, the appropriate response may simply be to refer an employee to police or other governmental authorities.
There are also specific steps that employers can consider in order to reduce the threat of violence among employees. Employers should consider the following:
- Employers should conduct thorough screening of applicants for employment. Virtually every employment application requests that an applicant identify his or her previous employers. Far too frequently, however, this information is ignored. Employers requesting such information should obtain a release from the employee and check references. In addition, application forms should be checked to ensure that questions are not left unanswered. Applicants should be questioned about gaps in their employment history. Consider asking applicants questions such as: Have you ever been disciplined or discharged for fighting, assaults, or related behavior? or Have you ever been discharged or disciplined for violating safety rules?
- Obtaining complete information may enable an employer to identify a potentially violent employee. Alternatively, the absence of such information, if diligent efforts are made, may be important in defending against a claim of negligent hiring should an employee turn out to be violent. The absence of information regarding an employee's potentially violent tendencies is less persuasive if the reason that there is no information is that none was sought in the first place.
- Applicants should be required to sign application forms indicating that the information being provided is truthful and accurate, and that omissions and false statements will result in discharge.
- In this regard, experts are split on the usefulness of psychological exams. In part, this is due to disagreement over whether a profile for a violent person exists, and if so, what it is. Incidents of workplace violence may be caused by situations which would arise for reasons not detectable by psychological testing. Given the lack of expert consensus, employers should be aware that psychological testing may be difficult to validate such that its use could result in difficult claims under the Americans with Disabilities Act ("ADA").
- Employers should develop work rules on threats, harassment, and fighting, communicate them to employees, and enforce them consistently. Employers should investigate reported threats and take appropriate remedial steps, including discipline or transfer, consistent with their policies.
- Employers should also maintain accurate performance appraisals, and should promptly investigate employees whose fitness for the job becomes questionable. In this regard, supervisors should be instructed to remain alert to dramatic changes in an employee's behavior or work performance. Of course, employers must remain sensitive to their obligations under the ADA. If such changes are the result of a covered mental disability, for example, and do not, objectively considered, rise to the level of a direct, immediate threat to other employees, reasonable accommodations should be considered.
- Employers should consider employee training for emergency situations, such as training in how to diffuse confrontations. Employees should be informed of any emergency procedures and who should be contacted in the event of an emergency.
- Finally, employers should consider appropriate measures to reduce the risks from outsiders. For example, violence may be eliminated by locking certain doors, limiting office access, hiring security guards or other staff, improving lighting, or installing cameras.
Conclusion
Unfortunately, it's probably impossible to eliminate all violence from the workplace. By recognizing the possibility of violence, and taking proactive steps, employers may reduce their potential liability due to incidents of workplace violence.