workplace violence prevention: legal considerations for

Presenting a live 90‐minute webinar with interactive Q&A

Workplace Violence Prevention:Workplace Violence Prevention:Legal Considerations for EmployersCrafting and Enforcing Anti‐Violence Policies and Complying With New OSHA Directives for Employee Safety

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, DECEMBER 21, 2011

Today s faculty features:

Barbara E. Hoey, Shareholder, Littler, New York

Thomas Benjamin Huggett, Shareholder, Littler, Philadelphia

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W k l Vi l Workplace Violence Prevention: Legal gConsiderations

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Understanding Workplace

genda Understanding Workplace

Violence

Understanding Legal Issues– OSHA Enforcement

– EEOC Enforcement of the ADAADA

– Workers’ Compensation

– Personal Injury

Practical Suggestions for Addressing Workplace Vi lViolence

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Violence in the U.S.: The Statistics

U.S. has the highest number of incidents of interpersonal violence per capita of any nation not engaged in civil war

U.S. has a rate of violence greater than four times that of any other nation

In 2003, gunshots became the number one killer in the United States

One in five high school studentscarry weapons (an estimated 270,000 guns are carried to270,000 guns are carried to school daily)

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Legal Issues –Occupational Safety and Health Act (OSHA)

N di t l ti No direct regulation

Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments

Guidelines for PreventingGuidelines for Preventing Workplace Violence for Health Care and Social Service Workers

“General Duty Clause:” “General Duty Clause:” employers must provide a workplace free from recognized hazards that can result in deathhazards that can result in death or serious injury. 29 U.S.C. § 654(a) 8

Legal Issues OSHA Legal Issues – OSHA

Industry specific violence prevention guidelines Industry-specific violence prevention guidelines (informational only and no compliance obligations) include:– Top management involvement in implementing a violence

prevention program.

– A written violence-prevention program for larger organizations.p p g g g

– A threat assessment team to evaluate the employer’s vulnerability to violence.

Appropriate engineering controls and work practices; and– Appropriate engineering controls and work practices; and

– Staff training on security awareness and self-protection.

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Legal Issues OSHA Legal Issues – OSHA

Enforcement Procedures for Investigating or Enforcement Procedures for Investigating or Inspecting Workplace Violence – OSHA Compliance Directive – September 8, 2011– An instance of workplace violence is presumed to be work

related if it results from an event occurring in the workplace

– Employers may be found in violation of the general duty clause if they fail to reduce or eliminate serious recognized hazards

– OSHA will conduct inspections where there is a complaint, referral, fatality or catastrophe

• Not directly inspecting co-worker threats of violence

– Review of feasible means of abatement

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Legal Issues –Americans with Disabilities Act (ADA)

Abusive, potentially violent employees may have diagnosed mental illness

Strict EEOC Guidelines concerning psychiatric disabilities

Legal limitations on employeeLegal limitations on employee threat assessments

Legal prohibitions on disclosure of medical information to otherof medical information to other employees

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Legal Issues –Americans with Disabilities Act (ADA)

Focus on the conduct, not the mental condition

Apply policies concerning workplace violence consistentlyp y

Include the ability to perform work safely in job descriptions

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State Laws Protecting Victims of Violence

34 states have laws providing some 34 states have laws providing some protected leave for victims of violence.

Q lifi ti f l Qualifications for leave vary:– Some leaves apply to victims of crime in

general, others extend only to victims of domestic abuse, sexual assault, and related crimes.

Duration of leaves vary:– Time off to participate in investigation or

prosecution.

– Up to 12 weeks for legal action medicalUp to 12 weeks for legal action, medical care, counseling, and relocation.

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Weapons in the WorkplaceWeapons in the Workplace

Implications of Conceal/Carry Laws

Second Amendment Issues

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Conceal and Carry LawsConceal and Carry Laws

Laws providing for the Laws providing for the legal carrying of concealed weapons is highly localized.

48 States currently h l ittihave laws permitting concealed weapons.

Some municipalities Some municipalities have particular laws and regulations concerning weapons

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Legal Issues NegligenceLegal Issues – Negligence Negligent Hiringg g g

Negligent Training

N li t R t ti Negligent Retention

Negligent S i i / C t lSupervision/ Control

Negligent Reference

Failure to Warn Targeted Victims

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Other Legal IssuesOther Legal Issues Defamation of character

Privacy: public disclosure of confidential facts

Constructive wrongful discharge

Retaliation for safety complaints

Workers Compensation Injury Claims

Workers Compensation Stress Workers Compensation Stress Claims

Rights/obligations under collective g gbargaining agreement

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Practical Suggestions for Practical Suggestions for Addressing Workplace Violence

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Being Prepared:Being Prepared:

Proactive Proactive Measures

Reactive MeasuresMeasures

Post-incident measures

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Proactive Measures:A Well-Drafted Policy

M k l “ l i ” Makes a clear “no toleration” statement

States the problem and concern for its human and operational costs

Demonstrates your company’s commitment

Defines exact behavior prohibited

States your company’s goal without creatingStates your company s goal without creating unnecessary legal/contractual obligations

Don’t say “The Company will take ALLDon t say The Company will take ALL measures to prevent workplace violence”

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Proactive Measures:A Well-Drafted Policy

Contemplates threats from third parties Contemplates threats from third parties

Plainly describes reporting requirements and proceduresprocedures

Defines the consequences for violations

Provides actual deterrent

Sets the foundation for eliminating hesitation in ireporting concerns

Creates diminished right of privacy for f hi l b l i dpurposes of searching personal belongings and

vehicles. 21

Proactive Measures:Implement a Hiring Process That Implement a Hiring Process That

Minimizes Risk Be consistent

Use an application form

W f– Warn of consequences for providing false informationinformation

Conduct thorough background checksbackground checks

– Post-offer, pre-employmentemployment

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Proactive Measures:Effective Training

B ild th “ t l ” th Builds on the “no tolerance” theme

Educates employees that the “little signs” and “gut feelings” are vitalgut feelings are vital

Teaches employees the steps to follow in reporting violence ― actual, perceived, or p g , p ,threatened

Reduces the tolerance for threats or violence in any form

Includes psychological, legal and security issues

Potentially offered at new hire stage and at regular intervals 23

Proactive MeasuresProactive Measures

Use of Employee Use of Employee Assistance Programs effectively

Discipline employees for making threats or engaging in intimidating behavior

Distribution of a zero-tolerance violence in the workplace policy

Provide employees with conflict resolutionconflict resolution training

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Proactive Measures:Preparing for Employee Confrontation

Don’t let employee know that a meeting is scheduled – take them by surprise so that they do not have time to prepare.not have time to prepare.

Have at least two members of management present.present.

When an employee is being evaluated, make sure you say good things y y g gabout the employee as well as critical things.

Make sure security is on ynotice and/or can easily be reached.

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Proactive Measures:Establish Incident Response Team

Senior Management with Senior Management with Authority to Mobilize the company’s Resources (GC and /or Sr. VP))

Human Resources/ Workforce Relations

Legal Counsel

Risk Management/Insurer

Global Security/Outside Global Security/Outside Resources

Local Law Enforcement

Psychological Experts26

Reactive Measures:Create Action Plan

Have an action plan BEFORE crisis occurs

Like fire drills, practice in non-emergency situationsemergency situations

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Reactive Measures:M t P t ti St D i Management Protection Steps During

Confrontation

N tt k l Never attack an employee –no insults or yelling.

Always remain calm when you talk.

Make sure you keep a good distance between yourself yand the employee

Stay close to the door in case you need to quicklycase you need to quickly leave.

Be mindful of special precautions if concealedprecautions if concealed weapons are suspected.

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Reactive Measures:When Crisis Occurs

I di t l I id t R T Immediately summon Incident Response Team

Immediately contact law enforcement and emergency response officialsresponse officials

Prevent perpetrator from entering premises/get and keep off premises

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Post incident MeasuresPost-incident Measures

R f l f i ti t Referral of victims to appropriate resources, including medical centers, counseling services victimscounseling services, victims advocacy groups, legal aid, and domestic violence shelters.

Providing flexible work hours or short term-extended leave

Conduct an employee debriefing within 24-48 hours after a violent incident to e plain hat steps are beingexplain what steps are being taken by employer.

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Post-incident MeasuresCommunications Plan

I t l C i ti Internal Communications and Confidentiality Requirementsq

Documentation Distribution Controls

Role of Public Relations and Public Access

Developing a Public Relations and Communication PlanCommunication Plan

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Thank YouYouBarbara E. HoeyBarbara E. Hoey(212) 497-8488bhoey@littler.com

Thomas Benjamin Huggett(267) 402-3035(267) 402 3035tbhuggett@littler.com

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