Attorneys

• W. Scott Hardy
• John E. Lyncheski

Related Practices

• Labor and Employment

One need only look at the recent rampages in Atlanta, Georgia; Birmingham, Alabama and Los Angeles, California for all too common examples of workplace violence.  Devastating acts of violence are occurring in the workplace at ever increasing rates.  Since no workplace is immune, employers must take affirmative steps to minimize the likelihood that violent behavior will occur on their premises, and must be prepared if and when such unfortunate events do occur.  The most effective way to minimize this risk is by adopting a program of Zero Tolerance and by uniformly and aggressively enforcing all policies that reduce risk.

According to the Department of Justice, each year more than 2 million Americans are victims of violent crime at work.  The question is not "Will it happen in my workplace?" but rather, "What's my workplace doing to prevent it?" and "Is my workplace prepared to respond when it happens?"  If your facility has not implemented a program of zero tolerance, it isn't doing enough.

Take Preventative Steps Early – Re-examine Your Hiring Procedures
Many violent employees should have never been hired.  Scrutinize job applicants before placing them on the payroll, review gaps in employment history, utilize criminal history record information and credit checks to the fullest extent allowed by law, and aggressively follow up on references.  Obtain releases and authorizations to ensure that references are provided with candor.  Once hired, carefully review the employee's behavior during an introductory period.  If the employee shows any propensity toward violence or acting out, don’t take a risk.

No matter what methods you employ, be advised that a little bit of effort in the hiring process is time and money well-spent.  A survey conducted by the National Safe Workplace Institute concluded that the average cost to an employer for a single incident of workplace violence is about $250,000, and the average settlement arising from a homicide is $1.2 million.  Litigation expenses can cause these figures to double.  In light of these costs, along with the physical and emotional devastation resulting from workplace violence, an ounce (actually a ton) of prevention is imperative.

Preventative Policies & Training
Incidents of workplace violence can be minimized by adopting a comprehensive set of policies designed to prevent violent outbreaks, by informing employees of the zero tolerance position that management will take if these policies are violated, and by meting out harsh penalties – including termination and reporting criminal behavior to authorities – when offenders violate these policies.  Zero tolerance is a must.

Implement and publish a policy stating your commitment to a safe work environment.  Policies that prohibit weapons, profanity and other inflammatory speech, threats and intimidation, disorderly conduct and other violent and inappropriately aggressive behavior are the underpinnings of an effective preventative program.   Prohibitions against the possession and use of drugs and alcohol, restrictions on employee access to the premises during non-working times, and a lawfully constructed search and inspection policy also serve as valued deterrents to job site violence.

In addition to the above-mentioned policies, you should develop a carefully crafted procedure for reporting and investigating potentially violent behaviors. Employees, especially supervisors, should be trained to respond to threats and assaults, and most importantly, on how to recognize warning signs of a potential problem – before violence erupts.

Other Strategies
Each workplace is as unique as the employees who work in it.  As such, each workplace presents its own set of challenges for preventing workplace violence.  Assess your workplace to determine where and at what times your facility is vulnerable, and take common sense measures to make things safer.  Security measures can be used in varying degrees, depending on your needs.

Legal Implications
Employers have a legal duty to provide safe workplaces which are free from violence.  The Occupational Safety and Health Act requires employers to furnish workplaces "free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees." Employers also may be held liable for negligent hiring and/or retention of a violent employee, negligent training and supervision of such employee, hostile work environment harassment, and negligent entrustment of a dangerous instrumentality to a problem employee.  Likewise, at least one federal court has found that an employer can be held liable for job site violence under the controversial Violence Against Women Act.

Conclusion
The recent shooting spells in Atlanta, Birmingham and Los Angeles and string of school shootings are examples of countless acts of violence occurring in our nation's workplaces each day.  Only by implementing a strong dose of zero tolerance can you minimize the risk of violence occurring in your workplace.  It's just good medicine.

For more information, please contact jlyncheski@cohenlaw.com and shardy@cohenlaw.com.