Workplace Violence: Don't Be Scared, Be Ready

By: Joseph H. Laverty, Esq.

Workplace violence is a problem that employers must deal with or be prepared to deal with at any time in today’s workplace. To demonstrate how prevalent violence has become, in 1999 more secretaries were slain on the job than police officers and bartenders combined. One thousand seventy-one Americans have been slain while at work and 160,000 Americans have been physically assaulted while at work. Obviously, violence in the workplace continues to be a major safety concern. Currently, workplace violence is the number one cause of death for women in the United States workplace and the second cause of death for men in the workplace. These statistics have had a staggering effect on workers compensation claims as well as litigation expenses. Not only has there been a direct correlation between companies’ bottom line and violence in the workplace but there is also the indirect cost of psychological trauma to employees, the loss of valued employees, loss of morale, decreased productivity and the negative impact on company image as a whole.

Most employers assume violence in the workplace cannot be predicted or prevented; however, employers that ignore workplace violence or the potential for violence do so at their own peril. Organizations that fail to establish and implement internal anti-violence programs open themselves to potential liability. Employers that fail to address potentially violent employees could expose their organizations to incidents that will damage morale, productivity and public confidence. To avoid liability, employers are bound to demonstrate that they "acted reasonably" to prevent workplace violence. In determining reasonableness courts and juries have to weigh several factors, including the appropriateness of the preventive steps taken by the employer relative to the type of job and work environment involved. Plaintiffs, on the other hand, have to demonstrate that their injuries were "proximately caused" by the employer’s negligent actions. Companies face potential liability under most state workers compensation statutes and could also face sanctions from the federal government under the general duty clause, §5(a)(1) of the Occupational Safety and Health Act. While the Occupational Safety and Health Administration (OSHA) has seldom used its authority in instances of workplace violence in the past, it should be noted that OSHA has released workplace violence guidelines for health care and social service workers and is expected to become much more active regarding this issue.

WARNING SIGNS

Violence is a process; very rarely does someone just go crazy and kill people. Violence management, policies and programs work because in 85 percent of all acts of workplace violence, the perpetrator offered warning signs. Signals employers should pay attention to include:

• Veiled and conditional threats;
• Fascination with other violent acts;
• Fascination with police organizations, paramilitary groups and survivalist groups;
• Fascination with weapons;
• Tendencies to blame others for problems;
• Loner personalities;
• Bully personalities;
• Depressive and suicidal tendencies;
• Self mutilation; and
• Past history of violence.

PREVENTATIVE MEASURES

There are a number of preventative measures companies can take in its effort to prevent violence. The most common steps employers take are:

SCREEN NEW HIRES

Pre-employment inquiries are generally limited to applicant’s ability to perform the essential functions of the job. An employer should not ask an applicant for information regarding their arrest record. An employer can ask an applicant about his or her past convictions but in Wisconsin employers cannot ask applicants regarding convictions unless the conviction is for a crime that is substantially related to the employer’s business.

Employers may also want to conduct a credit check as part of the hiring process. Under the Fair Credit Reporting Act ("FCRA") an employer may not secretly use a consumer report to deny employment. If an employer takes an adverse action based on a consumer report, the employer must inform the applicant of that fact and give the applicant the name and address of the consumer reporting agency. Employers should be extremely cautious if they are going to use a lie detector device. Employers have to comply with the Federal Employee Polygraph Protection Act §29 USC 2001 et. seq. This federal statute prohibits the use of lie detector tests except in very rare circumstances. If employers use pre-employment drug tests they need to be aware of their state statute and strictly follow the statutes regarding drug testing. Companies should also thoroughly check an applicants references and conduct a thorough interview.

PHYSICAL SECURITY
Employers need to control access onto company property. Employers should also train personnel on recognizing the signs of a potentially violent situation, where to go in case an incident occurs, demonstrate how alarms can be triggered and how they work as well as putting into place a response team in case an incident arises.

IMPLEMENT A ZERO TOLERANCE POLICY
Employers need to implement a clear, unambiguous zero tolerance policy with hard and fast rules that support security, prohibit hostile or intimidating behavior as well as veiled threats and prohibit any type of weapons on company property.

REPORTING
Employers should also have a clear policy regarding reporting incidences of violence and potential violence. This includes having an on-sight security representative. The policy should specifically state that their needs to be reporting regarding weapons being brought to work, threats being made, or other situations that could lead to violence.

INCIDENT MANAGEMENT
Employers should establish a crisis management plan which includes having local police and fire agencies tour company premises and provide the police and fire department with up-to-date drawings of the workplace. These drawings can be used if the police or fire department need to return in case of an emergency.

RECOVERY
Employers should also establish policies on how to deal with the press in case an incident occurs as well as having counseling and support procedures in place in case an incident takes place.

There is no way that an employer can be 100 percent protected from workplace violence but it can limit its liability by taking precautionary measures and by being prepared in case an incident occurs.

Posted 7/18/01