Preventing and Coping with Workplace Violence: A National Epidemic

January 15, 2004

By Horace A. (Topper) Thompson III

The Labor Relations & Employment Group of Watkins Ludlam Winter & Stennis law firm has assembled extensive resources and information to assist employers by placing the problem of worksite violence in a factual and legal perspective. This E-News contains an Executive Summary of the WLWS 70 page booklet entitled "Preventing and Coping with Workplace Violence", available at no cost to WLWS E-News subscribers. Simply E-Mail a complete mailing address and attention reference to which the booklet should be mailed. In the booklet, we discuss (I) the Executive Summary; (II) statistics indicating the scope of the problem; (III) the factual pattern of workplace violence; (IV) costs of workplace violence to the employer; (V) different types of potential employer liability in Mississippi and Louisiana; (VI) predicting workplace violence; (VII) responding to threats of violence; (VIII) what to do if violence strikes; and (IX) practical preventative measures.

EXECUTIVE SUMMARY: The Center for Disease Control has declared that violence in the workplace has risen to the level of a national epidemic. United States Department of Justice statistics reveal that incidents of violence occur in every industry, in both public and private employment, and in the largest and smallest workplaces. Homicide is now the second leading cause of occupational injury death in the United States, behind only motor vehicle accidents. As frightening as the statistics may be, even more chilling are the details of the numerous individual accounts of workplace violence. In addition to the tragic human cost, workplace violence has a dramatic financial impact on employers. According to the Workplace Violence Research Institute, the total annual medical, disability, turnover, absenteeism, legal defense and employer liability costs is $36 billion.

An employer's liability for worksite violence generally can arise in any of six contexts. First, an employer can be liable in worker's compensation to employees for intentional torts committed by co-employees if the violence is primarily employment-rooted. Second, an employer can be liable to employees in excess of the worker's compensation schedule of benefits for intentional torts committed by customers or non-employees where the injury is not in the course and scope of the injured worker's employment and the employer is negligent. Third, an employer can be liable to third parties (i.e., non-employees such as customers or vendors) for injuries caused by its employees if the injury was committed by the employer's agent in the course and scope of employment. Fourth, an employer may be held liable to third parties (e.g., non-employees or customers) for negligent hiring, retention, entrustment, or security of employees. Fifth, an employer can be liable for OSHA penalties for failure to abate a recognized risk of workplace violence. Finally, an employer can be liable for overzealous steps to prevent workplace violence.

Employers should consult experienced labor and employment law counsel to avoid the pitfalls of overzealous preventative techniques: (1) illegal security procedures involving searches, seizures and surveillance; (2) discriminatory treatment under the ADA of persons with emotional/mental disabilities; (3) exceeding EEOC limitations on access to criminal conviction and arrest records (damned if you do, damned if you don't); (4) checking background without complying with the Fair Credit Reporting Act; (5) using unvalidated personality or other psychological tests; (6) exceeding ADA or OSHA limitations on medical inquiries and examinations and access to medical records; (7) failure to provide Family and Medical Leave Act leave to seriously disturbed employees; (8) participating in false imprisonment or arrest of alleged perpetrator; (9) conducting a negligent investigation; (10) discriminating on basis of violent service record in violation of Uniformed Services Employment & Reemployment Act; (11) inadequate consideration of constitutional protection of personal privacy; (12) seizure of weapon in workplace in violation of Louisiana or Mississippi's Concealed Weapons authorization law without adequate policy precedent; (13) failure to coordinate with law enforcement consistently with state stalking laws.

Predicting and avoiding worksite violence is not always possible, but an employer can enhance its ability to predict and avoid worksite violence and its attendant costs by learning the common worksite, organization, perpetrator and victim risk factors. When an actual threat of violence is perceived, an appropriate response includes (1) investigation and identification of factors associated with the perceived threat; (2) assessment of the level of probable risk; and (3) implementation of appropriate responsive action.

If a workplace violence incident occurs, an employer's highest priority is to evacuate employees and provide medical treatment for any injured employees as drilled in regular training provided by the employer under its written Emergency Action Plan. If there have been injuries, an employer should call an OSHA attorney immediately, even before calling OSHA. OSHA provides strict guidelines for post-incident responses to workplace injuries. It is critical that an employer provide blood borne pathogen protections to those who provided emergency response, whether or not they were designated first responders. There are short deadlines for reporting certain injuries to OSHA. Within 8 hours, an employer must report to OSHA a fatality or the hospitalization of three or more workers if the incident in any way related to the workplace, whether or not the employer may have caused the incident. Later, an employer may wish to provide psychological treatment for both injured employees and employees who may have been traumatized by watching the events. Regulatory authorities such as OSHA and state police activate an emergency action plan in response to media reports or employer 911 calls about a worksite fatality or multiple hospitalization. Similarly, an employer must activate its own emergency action plan, including: (1) activation of a coordination team including media planners and legal specialists in tort defense and OSHA law; (2) development of a site investigation control plan; and (3) through counsel, consolidation of investigations in face of overlapping jurisdiction of regulatory agencies. Our experience has been that the state police can assist in the coordination of parallel investigations by various federal, state and local regulatory agencies; after all, they are the regulatory agencies whose employees carry weapons. The coordination team should consider issues relating to insurance coverage, criminal defense, and any reservation of rights by insurers. In concert with Company's consent to warrant less investigation, counsel familiar with safety and health law should discuss with regulatory agencies protocols regarding limitations on consent to the investigation, witness interview, measurement and monitoring protocols, document loan, and prompt availability of agency observers for nondestructive testing of equipment that must be restarted. Finally, it is vital that every employer have a plan for intra- and post-emergency notification of the next of kin of injured or deceased persons.

Specific practical steps we recommend an employer take to prevent workplace violence and minimize liability and other costs associated with worksite violence incidents include: (1) Consider OSHA'S Voluntary Guidelines; (2) Thoroughly Assess Inherent Risk; (3) Adopt Aggressive Pre-employment Screening Procedures; (4) Publish a Written Workplace Violence Policy Statement; (5) Require Employees to Report Urgent Concerns to Specified Representatives; (6) Promulgate Appropriate Work Rules; (7) Implement Appropriate Worksite Security Measures; (8) Conduct Quality Internal Investigations of Threats; (9) Obtain Authorization for Workplace Searches for Weapons and Drugs; (10) Consider Electronic Monitoring and Surveillance; (11) Train Threat Assessment Teams; (12) Consider the Benefits and Risks of Employee Assistance Programs; (13) Give Employees and Supervisors Adequate Training to Spot and Respond to Potentially Violent Situations; (14) Train Supervisors to Respond to Threats of Violence; (15) Develop the 'Ability to Recognize & Reduce Stressors That Increase the Likelihood of Violence' (16) Manage Employee Terminations.

If you have any questions, please contact Topper Thompson in his New Orleans office at 504-522-8788.

Horace A. (Topper) Thompson III is a shareholder in the Firm's Labor and Employment Practice Group and resides in the Firm's New Orleans office. He may be contacted at (504) 522-8788 or tthompson@watkinsludlam.com.