Stories of workplace violence dominated the news in the first half of 2021. Three of the ten deadliest workplace shootings of the last 40 years occurred in the last six months alone. According to the U.S. Bureau of Labor Statistics, intentional acts of violence are the third leading cause of fatal occupational injuries—in 2019, nearly 10% of fatal workplace injuries (454 of 5,333) were not accidents but were intentionally caused by another person. But while the worst instances of workplace violence grab more of our attention, the vast majority are nonfatal yet serious injuries that often go unreported by both the media and the victims. As we move into the second half of the year, these harrowing reminders of the dangers of workplace violence should prompt employers to review the measures they have implemented to reduce the risks of violence against their employees.
In many respects, reducing the likelihood of workplace violence requires the same kind of rigor as preventing the spread of the coronavirus: it requires employers to identify risk factors present in their workplace and the way employees work, and to take appropriate precautions to minimize those risks. The Occupational Safety and Health Administration (OSHA) has identified some occupational risk factors that may increase the potential of occupational violence, including: (1) the exchange of money; (2) the sale of alcohol, drugs, or firearms; (3) working alone or in an isolated area; (4) poorly lit corridors, rooms, and parking areas; and (5) understaffed shifts. Of course, the gravity and prevalence of these and other risk factors will vary, depending on the type of worksite and its location. Employers should evaluate their physical facilities to comprehensively identify risks, from and to employees and non-employees alike, and should implement appropriate physical, technical, and administrative measures to reduce these risks. Examples of such measures include limiting access to and within facilities with the use of electronic key systems or barriers, storing cash and other valuables in time-controlled safes, scheduling multiple employees for all shifts, maintaining adequate lighting inside and outside the worksite, and hiring trained security personnel.
More than identifying any particular risk of violence at a worksite, however, an important precaution an employer can take is to develop policies directed at reducing workplace violence. It is crucial that workers, management, and executives alike understand what conduct will not be tolerated, that engaging in such conduct will lead to appropriate disciplinary action, and that all claims of workplace violence will promptly be investigated and remedied, regardless of the subject of the complaint. To provide clarity and to avoid being inundated with claims by hypersensitive employees, employers should clearly specify what conduct is not considered violent under their policies; for example, an employer may determine that yelling or shouting is inappropriate and violates other policies, but is not, without more, considered violent behavior under the workplace violence policy. Employees may not appreciate the distinction unless the policy clearly explains what constitutes behavior that is considered violent, and such lack of clarity could lead to misdirected complaints. In addition to distributing a clear written policy to all employees, employers should train employees and supervisors on the policy, including on how to file a complaint, how complaints will be investigated, and appropriate protections against retaliation for reporting behavior in good faith.
Unfortunately, there is no “one size fits all” solution to determining which elements of the workplace increase this risk, including for identifying employees who are potentially violent. In addition to identifying and addressing environmental and work risk factors, and establishing clear policies addressing violence and violent behavior, employers should consider the role of their hiring practices in helping to create and maintain a violence-free workplace. Although potentially violent employees may not fit any particular profile, there are lawful steps employers can take during the hiring process to minimize the risk of hiring employees who could prove problematic. This starts with gathering information about employees before they are even hired. At common law, employers are generally required to exercise reasonable care in hiring and retaining persons as part of their obligation to provide a reasonably safe work environment. Even if no useful information is obtained, actually asking for information about applicants helps to prevent potential liability later. Consider this: Would it not be better to say one asked but was not told the truth about an applicant’s prior history, rather than to say one did not even bother to ask? One approach reflects reasonable diligence, the other not so much. Consequently, without prejudging the quality of information that will be provided, employers should ask for and check all applicants’ references, ask about gaps in applicants’ employment histories, and ask questions about violent behavior, such as whether applicants have previously been disciplined or discharged for fighting or threatening behavior. Employers may also conduct background reports on applicants, but should be aware of applicable limits under the Fair Credit Reporting Act, 15 U.S.C. § 1681, and any state law limits, as well as the need to critically assess the information obtained to avoid possible discrimination. Additionally, employers should beware of psychological “screening” tests, which may run afoul of antidiscrimination laws because the tests have not been or cannot be validated. Such tests could perpetuate stereotypes that are discriminatory or have a discriminatory effect.
For further guidance or assistance on implementing programs for reducing workplace violence, contact Venable’s premiere Labor and Employment Group, or visit OSHA’s workplace violence prevention program page.
* Zachary Silver is currently admitted to practice in New York. He is not admitted in the District of Columbia and is currently practicing under the supervision of Venable LLP partners admitted in the District of Columbia.