by Jackson Lewis

Apart from a military action requiring the call-up of employees into active duty, corporate employers must anticipate the possibility of a workplace crisis with the potential to cause company-wide repercussions, such as a natural disaster, a calamity debilitating to the employer’s physical property, a physical attack on employees by a violent co-worker or third party, an abrupt closure or reduction of the business, or the sudden loss of a charismatic executive.

Indeed, the attacks on the World Trade Center and the Pentagon were, among other things, extreme examples of workplace violence, and affected employers invoked crisis communications, tightened physical security, administered coping mechanisms, and executed decisions to preserve financial viability. However devastating or unexpected such an event may be, the trained response of a prepared management team can shoulder the immediate impact and regain the control needed to stabilize the situation and move forward with an effective action plan.

Preventing Workplace Violence and Its Resulting Liability
While it is hard to imagine a repetition of workplace tragedies of the magnitude of the World Trade Center and the Pentagon, the probability of violent incidents at work resulting in death or serious injury to employees has risen dramatically in the past decade. Some reports prior to the events of September 2001 had put the increase as high as 300%. According to the federal government's National Institute for Occupational Safety and Health (NIOSH), homicide ranks as the leading cause of occupational death among women. Among all U.S. workers, homicide is the second leading cause of workplace death.

Employers have a legal obligation to provide a workplace reasonably free from hazards. They also have the obligation to take reasonable steps to insure individuals they employ and do business with will not cause intentional harm to other employees. These duties are contained in a variety of federal and state safe workplace laws, as well as common law negligence standards. By understanding the scope of the duty to provide a safe and hazard free workplace, employers may be able to avoid the unthinkable and be proactive in stabilizing the unpredictable.

Occupational Safety and Health Act
Pursuant to the "General Duty Clause" of the federal Occupational Safety and Health Act, employers have a responsibility to safeguard employees from recognized hazards which may cause serious physical harm or death. Under this clause, OSHA has issued citations to employers for exposing their employees to workplace violence. OSHA has published guidelines for preventing workplace violence at health care facilities and retail establishments, among others, indicating the agency’s intention to continue to cite employers for workplace violence exposures under the Act’s General Duty Clause. These guidelines provide a basis upon which employers in any industry or field may build an effective and good faith program to prevent and/or contain a violent workplace incident. Some states have promulgated independent workplace violence standards.

Common Law Liability for the Harmful Acts of Employees to Others
OSHA is not the only law imposing obligations upon employers to take every reasonable precaution to guard against workplace violence. Under the "common law" doctrine of negligent hiring or negligent retention, employers must protect workers from individuals who have demonstrated a propensity to behave violently towards others.

An employer owes a duty of care to those with whom its employees may forseeably interact as a consequence of their employment. This duty imposes an obligation on employers to hire and retain employees reasonably believed to be safe and competent and to make a reasonable inquiry based on the nature of the position, the risk to others posed by a person in that position, and the harm if that risk becomes reality.

Controlling the Risk of Negligent Hiring/Retention
What can employers do to protect their employees and themselves from workplace violence? How can employers shield themselves from negligence suits brought by third parties who have been injured by violent employees? Despite the challenges employers face in conducting the level of background investigation necessary to screen out potentially violent or disruptive employees, it is imperative for employers to take control of hiring and retention decisions and to have available the kinds of information necessary to make well-informed decisions.

This necessitates knowledge of the restrictions on conducting background investigations, such as the federal Fair Credit Reporting Act and various state consumer protection laws, which apply to inquiries for employment purposes. Other restrictions apply to obtaining information about arrests and convictions as, for example, the EEOC position that disqualification of applicants based upon arrest records (which did not result in convictions) has an adverse or disparate impact upon minorities in violation of Title VII of the Civil Rights Act of 1964, as amended. Furthermore, some states limit an employer’s ability to deny employment based upon a conviction record unless the conviction is job related (e.g., New York).

Nonetheless, employers can develop and implement screening processes, which stay within permissible bounds and safeguard the privacy rights of individuals while netting the kind of information that enables an employer to make a good hiring or retention decision. Indeed, in certain circumstances, such as where another employee has lodged a complaint of an individual’s violent or disruptive behavior, the employer must undertake an investigation of the incident and may be required to delve into the individual’s background. Knowing the rules beforehand will not only facilitate any necessary remedial action but will set a correct course for conducting a thorough and effective investigation.

Strategies for Taking Control of the Potential for Workplace Violence
To comply with mandates of the U. S. Supreme Court and other federal and state courts, as well as the Equal Employment Opportunity Commission and other fair employment practice agencies, all employers should develop and implement a policy prohibiting harassment and violence of any kind and encouraging employees to report all complaints of harassing or violent behavior to the designated management official. All reports should be documented, as well as the findings of the investigation. These reports should include statements of the reporting individual and other individuals who may have information relevant to the report. Observations or statements by the individual accused of misconduct also should be recorded. When appropriate, local law enforcement authorities should be notified. Once the investigation is completed, management should take appropriate action to counsel, discipline or terminate the offender as soon as possible.

Training. All supervisors and managers should be trained on the harassment policy and the procedures for reporting and investigating complaints. All employees also should be trained in the employer’s anti-harassment policy, including what kinds of behavior are considered to be inappropriate in the workplace and what the consequences are for engaging in prohibited behavior. Employees should understand the procedures for making and investigating a complaint, and they should be assured they will not be retaliated against and should immediately report any additional inappropriate behavior.