On an increasing basis, workplace violence has become an employment problem which is demanding the serious attention of employers. This chapter describes the nature and magnitude of the problem, the types of legal claims arising from workplace violence which can produce liability for an employer, and the types of actions and programs employers can implement to minimize the threat of workplace violence.

Workplace violence is growing. In a recent report published by a major life insurance company, workplace violence was categorized in three basic ways:

1. Employee-to-employee violence accounts for 20% of violent attacks against workers.

2. Third-party violence against employees represents over 60% of violent incidents involving workers.

3. Employee attacks or threats against third parties make up the remaining percentage of violent workplace incidents.1

Nationwide statistics reporting on incidents of workplace violence, are simply frightening. Homicide has been reported as the second leading cause of workplace deaths, trailing only motor vehicle related deaths. For females, it is the major source of death. Additional studies provided by the National Institute for Occupational Safety and Health (NIOSH) in 1993 reported that the most common victims of workplace homicides were sales representatives and service employees. However, the third most victimized job classification was executives, administrators, and managers.2

SOURCES OF EMPLOYER LIABILITY FOR WORKPLACE VIOLENCE

When an outside third party or co-employee engages in an irrational and violent attack in the workplace, it may seem incredible to some employers that their business could be held liable for such a random act of violence. Nonetheless, there are an increasing number of decisions finding employer liability for acts of workplace violence. Among the legal theories which have been utilized for the assertion of liability against employers are the following:

OSHA General Duty Clause, Section 5(a)(1). While OSHA has recently made workplace violence one of its highest priorities, at the present time there is no OSHA standard which specifically addresses the issue of workplace violence as an occupational hazard. Still, the Occupational Safety and Health Administration has indicated a willingness to cite employers for the existence of a workplace hazard under what is called the general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act. 29 U.S.C. § 645 (a)(1).

In a handful of incidents since 1993, OSHA agencies have utilized the general duty clause to address incidents of workplace violence. The general duty clause itself requires that employers must furnish a work environment free of hazards which (a) are recognized by the employer or industry as hazardous; (b) have the potential for causing death or serious physical harm, and (c) which may be abated by feasible means.3
One of the difficult decisions facing OSHA as it contemplates future enforcement initiatives is whether it should also attempt to regulate verbal threats and harassment. Although such threats obviously do not entail physical injury, they many, nonetheless, inflict psychological damage or predict violent physical attacks. Employers should anticipate that OSHA will be proposing additional standards to deal with the phenomenon of workplace violence in the future.

"Work-Related" assaults and workers compensation. In any incident of workplace violence, the first issue likely to be raised concerning employer liability is whether the injury could be covered under workers' compensation law. In most states,workers' compensation is the exclusive remedy for an employee who suffers a work-related injury or death. The compensation owed to the employee under the workers' compensation statute is arguably the "quid pro quo" for the employee's relinquishment of any cause of action against the employer for workplace injuries.4 However, workers' compensation only excludes outside actions if the injuries were incurred (a) within the scope of employment and are (2) "work related". In cases of workplace violence, work-related injuries are those which arise because the risk of the assault increased because of the setting or the nature of the work, or those caused by an attack because of a dispute which originated on the job.

"Work-Related" injuries resulting from a dangerous work environment. Some employees have been covered by workers' compensation because they work in a dangerous environment or handle duties which expose them to an increased risk of violence.5
Other injuries incurred because of violence at the workplace may be covered by workers' compensation because they are intimately connected with employment, such as a situation where the violence erupts from a dispute over working conditions or other aspects of the job such as terminations or performance appraisals.6 On the other hand, assaults which arise out of purely personal problems or disputes are not considered "work-related" even if they occur in the workplace. In these instances, such as an assault arising from a marital conflict, an employer will not be held liable for workers' compensation where the dispute is purely personal or the connection to the job is too tangential.7
The final type of workplace injury stems from disputes which are not inherently connected to the job, nor are they purely personal. These disputes have been viewed by the courts on an increasing basis as falling within the exclusive limitation of workers' compensation remedies.8

Liability for an employer as "Premises Owner." Employers have been held legally liable where they do not take reasonable steps to guard against violence on owned or leased premises. An owner or lessee of property is not required by the law to be an insurer of the safety of third parties or business invitees who happen upon the premises. Nonetheless, it must protect third parties from criminal acts or intentional acts by patrons or other persons where the harm is reasonably foreseeable. Violent acts are foreseeable if the character of the business or its history of criminal or violent incidents should cause the owner or lessee to anticipate that violence could occur.9

Liability for violence against third parties. There are essentially three theories which can raise employer liabilities where an employee injures or kills a third party. The theories: negligent hiring, negligent retention, and negligent supervision, all arise from the legal duty of the employer to protect third parties from harm from employees who the employer knows or should know could potentially be violent. A brief discussion of these theories is set forth below.

Negligent hiring. Where a dangerous employee has been hired by an employer without an adequate background check, the employer arguably has been negligent in hiring the violent employee and may be held liable in tort for negligent hiring. The law of negligent hiring is developing rapidly and is premised upon the legal obligation of the employer to avoid hiring individuals who might commit workplace violence where there is a discoverable record of criminal or violent activity.10

Negligent retention of employees. The claim that an employer has negligently retained an employee is most often asserted where the employer has been given information from which the employer could conclude that the employee is dangerous, but the company does not take reasonable precautions to control the unfit worker. This claim may arise where management had information which should have precipitated an investigation, reassignment, or even termination of an employee with violent propensities and the business failed to react.

Negligent supervision. Negligent supervision is a claim that is not as well defined, nor as frequently utilized as negligent hiring or negligent retention. Some courts treat the supervision claim as identical to the retention claim. Other courts isolate the supervision claim to circumstances in which an employer has failed in its duty directly supervise an employee while he/she is on the employer's premises or controlling the employer's equipment or property. See Degenhart v. Knights of Columbus, 420 S.E. 2d 495 (S. Ca. 1992); American Automobile Auction, Inc. v. Tittsworth, 730 S.W. 2d 499 (Ark. 1987).

LEGAL LIMITATIONS ON EMPLOYER LIABILITIES

Given the growth of the aforementioned legal claims leading to employer liability for workplace violence, many employers have understandably begun to implement measures and policies directed toward preventing violence in the workplace. Nonetheless, an employer does not simply have "carte blanche" authority to take whatever steps may seem necessary to protect against violence in the workplace. Indeed, there are some limitations against comprehensive background checks or workplace surveillance by an employer.

Americans with Disabilities Act (ADA). The Americans with Disabilities Act from 1990 is not legislation directed toward addressing the issue of workplace violence. Rather, the Act's purpose was to prevent discrimination against qualified individuals with disabilities. Nonetheless, the statute has had a tangential impact on the workplace violence issue as it prevents employers from taking some steps which might tend to reveal an employee's propensity to engage in violent behavior.

Questions about disabilities. The ADA prohibits employers from asking job applicants questions about substance dependency or mental or emotional disorders until the applicant has received a conditional offer of employment.11 After the employer has extended a conditional offer, the employer may ask disability related questions or even conduct a medical examination provided the focus of the examination is the following:

1. To determine whether the individual has the physical and mental qualifications to perform the essential functions of a job;

2. To determine whether the applicant is capable of performing the job without causing a "direct threat" to the safety of third persons or the applicant; or

3. To comply with medical requirements of other federal laws.12

If the employer has extended a conditional offer of employment and asked medical related questions which might tend to reveal a propensity for violence, the employer has additional obligations if the applicant is not hired. At that point, the employer must provide the applicant with a reason for refusing to hire. The reason must be job related and consistent with business necessity, and the employer must be able to establish that there was no reasonable accommodation which would have allowed the applicant to handle the essential functions of the job.

"Direct Threat" exception. The "direct threat" exception is the one which probably best fits an employer's decision to reject an applicant who has violent propensities. In that instance, the employer must be prepared to show that the applicant poses a current risk to himself or others and that there is a high probability that significant harm will occur if the applicant is hired or the employee remains employed. Any employer who seeks to rely upon this exception should be prepared to offer objective evidence supporting its decision, including expert medical opinions supporting the decision.

Arrest records. The scrutiny of arrest and conviction records can certainly provide an employer with evidence concerning an applicant or an employee's propensity to engage in violent conduct. Nonetheless, several states limit the extent to which an employer may utilize an arrest record in making employment related decisions. In addition, making employment decisions based upon arrest records can also implicate discrimination statutes should the applicant be a member of a protected classification (i.e., a racial minority). As a consequence, an employer who is contemplating scrutinizing arrest or conviction records should be mindful of these issues and consult with qualified legal counsel before making decisions based upon such records.

Consumer Credit Reporting Act. The Consumer Credit Reporting Act contains some restrictions which limit an employer's use of credit information in making decisions about applicants for employment. Among the requirements which limit an employer's use of credit reports are the following:

1. The employer must notify the applicant within three days after requesting an investigative consumer report.

2. If the applicant makes a written request, the employer is obligated to disclose information about the investigation.

3. Where an employer denies employment as a result of a credit check, the applicant must be notified and be given the name and address of the credit reporting company.13

Polygraph prohibitions. The Employee Polygraph Protection Act of 1985 limits private employers in attempts to use polygraph testing or lie detectors in the employment setting. However, exceptions are available under the Act which permit polygraph exams related to investigations for theft, embezzlement or misappropriation, security services or pharmaceutical firms' employees.

Fingerprinting and photographs. Some states prohibit an employer from requiring employees to submit to photographs or fingerprint checks for background investigations.14 While fingerprint checks can certainly be useful in providing information concerning an employee's previous criminal record, an employer will be wise to carefully check with counsel to determine in which states such methods are prohibited.

Searches and monitoring. Constitutional protections will limit a public employer's right to engage in workplace related searches. Private employers are not subjected to constitutional limitations in searching the workplace. Still, courts in some jurisdictions have nonetheless found that an employer invaded an employee's privacy by conducting such a search.15
Federal law prohibits indiscriminate telephone monitoring by both public and private employers. Title 3 of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 only permits an employer to monitor telephone calls under the following circumstances:

a. The employee knows of, and has given consent to, the monitoring;

b. The employee must be informed that a monitoring system is in place with an explanation of the business purpose for the monitoring.16

Even if an employer has complied with the statute to engage in such monitoring, the employer may not continue to monitor if it becomes obvious that the call is clearly of a personal nature. Again, utilization of monitoring by electronic means in the workplace may be of little practical utility in attempting to monitor an employee's propensity to engage in workplace violence.

A word should also be offered on employee surveillance. Some states prohibit closed circuit or video recording of employees on the job. In addition, labor statutes, such as the National Labor Relations Act also contain limitations upon an employer's ability to engage in the surveillance of an employee's activities. The cautious employer will again consult with legal counsel concerning such statutes before engaging in surveillance or monitoring in the workplace.

PROGRAMS FOR PREVENTING WORKPLACE VIOLENCE

In planning some comprehensive effort to avoid incidents of workplace violence, an employer may take several steps which could serve to reduce the likelihood of a violent incident in the workplace. Among those steps are the following:

Written policies prohibiting violence and harassment. At the very least, an employer should have a comprehensive written policy which prohibits violent acts, threats, harassment, and intimidation in the workplace. The policy should contain appropriate procedures to permit the reporting and investigation of incidents. The policy should inform employees that the company will cooperate and assist law enforcement officials in the prosecution of violent incidents.

The employer should also have appropriate work rules and disciplinary rules which prohibit intimidation, threats, or acts of violence and which serve to immediately address violations of the rules. Company procedures must provide for an immediate and thorough investigation of any allegations of behavior which run afoul of company policies against workplace violence. The policies, work rules, and disciplinary sanctions should be made available to each employee as part of the employee handbook or a separate policy. The employees should be obligated to acknowledge receipt of the policy, understanding of the policy, and agreement to be bound by the policy.

Workplace searches, monitoring and surveillance. As noted in previous sections of this chapter, workplace searches, monitoring and surveillance can create legal problems for employers if done incorrectly. Still, they can remain important weapons in an employer's arsenal to detect, in advance, the potential for a violent workplace incident. Properly conducted in accordance with state and federal law, an employer should consider utilizing these measures as part of a comprehensive program to search out and prevent workplace violence.

Security systems. Every employer should be conscious of the need to constantly scrutinize the security of its physical facility and work practices which relate to security on the employer's premises, such as the following:

1. Physical security should include adequate external lighting, silent alarms, security access cards, limited access to company facilities even during working hours, installation of security surveillance systems where necessary, and so forth.

2. Employer practices to insure safety in the workplace should relate to after hours security access, enforcing visitor sign-in procedures, employee education in response to potential threats or incidents of violence, and so on.

Applicant screening. Screening at the pre-employment stage is a critical step for employers interested in preventing future incidents of workplace violence. Listed below are some simple screening measures which may tend to reveal applicant's propensity for violence, provided they are lawfully utilized in the applicant screening process:

1. Verification of reference checks and employment history.

2. Lawful drug and alcohol tests and applicant histories.

3. Lawful psychological testing and inventories designed to identify current problems.

4. Probing pre-employment interviews focusing upon gaps in employment history, relationships with former supervisors and co-employees, "isolationist" and anti-social tendencies.

Incident response teams. Every company should form response teams consisting of trained employees capable of addressing incidents or threats of workplace violence. The teams should be trained on conducting investigations, defusing emotion, and providing adequate communication to co-employees about such problems. Further, the teams should form a relationship with law enforcement officers and emergency personnel whose assistance is critical in an incident of violence. The response teams can also be of significant assistance in training and educating employees about the issue of violence in the workplace.

Employee assistance programs. Many companies have employee assistance programs. These programs are often a valuable tool for assisting employees who are in the throes of job stress, substance abuse problems, or other personal issues, including financial and marital difficulties. Again, these types of problems can potentially lead to violent behavior in the workplace. Employers should see to it that employees have adequate information concerning the availability of an EAP and the program should be active and readily accessible.

Management training. While potentially violent behavior may be first exhibited toward a co-employee, the reaction of management in handling such an incident is critical. As a consequence, supervisors and managers must receive adequate training to identify the characteristics of potentially violent employees and to understand the types of appropriate action to take when violent behaviors are exhibited in the workplace. In particular, supervisors should understand how to effectively implement conflict resolution techniques and how to utilize empathetic communications to avoid inflaming the passions of a person who may be prone to workplace violence. Rational, deliberate behavior is often critical to the handling of a situation in which an employee presents a danger to himself or others.

Employee education. Employees must understand that workplace violence happens. They should be given training in how to spot potentially violent situations and how to report and deal with threats of violence in the workplace. Training could include conflict resolution techniques and education on effective, empathetic communications.

Employees must understand that there exists a "duty to warn" the employer if threats of violence take place at work. An employer cannot effectively address a potentially violent workplace incident unless the employer had adequate and timely information about its occurrence. Employees must assist in the process of providing this information.

In summation, workplace violence is a growing problem for employers around the country. Prevention rests upon the timely identification of the potential for violence and the formulation of adequate procedures and policies for dealing with workplace incidents.