Labor attorneys explain the different policies and practices employers should create and follow to help prevent and handle violence in the workplace.
REPORT FROM THE U.S. —To protect themselves, other employees and consumers, employers should prepare for the threat of workplace violence through policies and training, attorneys said.
During a webinar titled “The impact of workplace violence as it relates to employment laws and OSHA,” attorneys with law firm Conn Maciel Carey explained that workplace violence can have warnings signs or occur unexpectedly, so it’s important to make sure the company is ready with policies and procedures that can help prevent violence as well as guide employees’ actions should it happen.
The federal Occupational Safety and Health Administration developed guidance to help define workplace violence, said Andrew Sommer, partner at the firm. It relates to any act or threat of physical violence, harassment, intimidation or other threatening and disruptive behavior that occurs in the workplace. This includes assault, battery, harassment, intimidation, bullying, threats and active shooter situations.
“Workplace violence can manifest in a variety of ways,” he said.
Violence can come from current employees, disgruntled former employees and failed job applicants, he said. Other times there is a third party, such as a spouse going through a divorce with an employee, an employee’s stalker or a client, patron or vendor, who commits an act of violence in the workplace. Strangers with no connection at all can also commit acts of violence, he said, such as a robbery or gang incident in a public place.
The U.S. Bureau of Labor Statistics has reported that 18% of all violent crimes are committed in the workplace, he said, and 21% of workplace crimes involve weapons, most often a gun. More than 2 million people report being the victim of an act of workplace violence each year, he said. The latest bureau survey showed that fewer than 30% of private employers have a workplace violence prevention program, and only 20% have prevention training.
There’s no specific workplace violence regulation at the federal level, Sommer said, but the federal OSHA has pointed to its general duty clause, which in part requires employers to provide employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” Some states have also enacted their own individual regulations, some of which are targeted at certain industries.
Employers should identify conditions, work tasks and situations that expose workers to the greatest risk of violent incidents, Sommer said.
When dealing with workplace violence committed by an employee, the employer can potentially face a number of different liabilities, said Kara Maciel, founding partner of the firm. Employers generally do not have the duty to control the conduct of another person absent a special relationship, she said, such as when an employee acts as an agent for the employer in a limited purpose.
“You have a duty as an employer to control the actions of employees, particularly when their actions are within the scope of their duties,” she said, such as making sure a security guard who has access to a gun or other weapon uses it correctly.
Negligent hiring is another area of liability in which an employer has breached its duty to protect employees and third parties from injury caused by another employee the employer either knew or should have known posed a risk and was unfit for the job, she said. That could stem from failure to check with prior employers, to check references and/or to perform a criminal background check where such an inquiry would have revealed a history or propensity for violence.
“Have a policy on background checks and follow it,” she said. “It’s worse if you have a great policy but don’t use it or follow up on it.”
Employers can also be liable for negligent supervision and retention, Maciel said. Employers should make sure their managers take reasonable care in supervising employees who make threats or exhibit violent conduct, she said. They need to determine if a manager knew or should have known about the risk through a complaint or previous incidents and failed to take action, she said.
When performing a background check, it’s important to complete the entire process before the employee actually starts working, she said. It’s simpler to revoke a tentative offer because of something discovered in the check that made the candidate ineligible than to terminate the employee a few days after beginning their employment, she said.
The U.S. Equal Employment Opportunity Council has taken the position that not all prior convictions should be considered when making hiring decisions, she said. It’s important to take into consideration how long ago a crime was committed, the age of the person at the time it happened and the age of the applicant now as well as the nature of the crime and whether it was job related, she said. The EEOC also requires that the treatment of arrests to be different than treatment for convictions, she said.
Some states have fallen in with the “ban the box” movement, she said, which is legislation that bars employers from asking about a job applicant’s criminal history on the employment application. The laws allow employers to perform a background check after the initial application and before making a hiring decision, however, she said.
Policies and procedures
It’s important for a company to have policies and practices established, Maciel said, and it’s equally important to train employees to know how to respond to workplace violence based on the policies and procedures. Companies need a solid policy that defines prohibited conduct, sets up a complaint procedure, establishes a neutral avenue for complaints and states an anti-retaliation statement, she said. Make sure these policies dovetail with other workplace policies in the employee handbook, she said.
Create standalone written workplace violence prevention programs, she said, and set a zero-tolerance policy for workplace violence.
Once the policies and practices have been put in place, train employees on them, she said. Keep a record of training to demonstrate to OSHA, a third party or a plaintiff the company has taken reasonable steps, she said.
Review employee emergency contact lists to ensure they are current as well, she said.
When considering insurance policies, some can provide reimbursement for things like employee counseling following an incident as well as coverage for public relations and crisis communication plans and for loss of business if the workplace has to shut down for a period of time, she said.