Shocking acts of violence are reported in the press every day. Reading about bombers, gunmen, and rapists in schools and homes and nightclubs is almost unbearable. For us labor lawyers, workplace violence is particularly disturbing. This question always comes immediately to mind – what could have been done? Often, everything that could have been done was done. Often, the “lone wolf” simply could not have been anticipated, and a random tragedy occurs without warning.
There are occasions, however, in which there perhaps is a little “something” if not a warning. For example, we lawyers sometimes receive calls from clients about an employee behaving very strangely. Maybe there is a preoccupation with weapons. Maybe there is a report that someone is on a “sex offender list.” Maybe there is an anger-management problem that has led to a confrontation between employees at some level in the past. What should employers keep in mind in responding to these situations?
Potential Claims
The first thing employers should have in mind is employee safety and the safety of customers or the public. Often the worst piece of evidence in a case is that the defendant had some sort of notice or forewarning of potential danger and did nothing. Once a company is on notice of a problem, rarely does the company get a second chance to address that problem. If an employee attacks another employee the first time, the company might be able to say that the employee was outside the scope of his employment and thereby avoid liability. If it happens a second time – watch out.
Claims from employees due to workplace violence can include workers’ compensation claims, federal and state safety complaints, and co-employee claims – lawsuits in which employees sue their supervisors, their safety personnel, or their company owners individually. Claims from customers, clients, and the public can include negligent hiring and retention claims and a variety of other claims against the company based on negligence or wantonness.
Best Practices
Employers and all of us in the HR world often lean toward giving an offending employee a second chance, implementing progressive discipline, and avoiding discrimination claims at all cost. Thus, danger can be overlooked, and a disturbing incident the first time can turn into a tragedy the second time.
The most important steps employers can take involve considering these sorts of safety issues before they arise. Adopt a violence prevention plan. First, perform an assessment. This includes considering the “lone wolf” scenario just like you would consider hearing protection, fall protection, hazard warnings, and the like. Once a solid potential hazard assessment is done, a plan should be implemented that includes security measures, training, and monitoring. Ideas all the way from security cameras to designation of escape routes come to mind. Certainly a “tip” line should be considered. And, importantly, if there is a “near miss,” document it, study it, and learn from it. All of these efforts could help avoid a tragedy and possible exposure to employer liability.