preventing workplace violence in the u.s.: critical legal ...€¦ · 30/4/2013 · •carrying...
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Preventing Workplace Violence in the U.S.:
Critical Legal, Behavioral, and Operational
Considerations for Employers
April 30, 2013
Presenters
Moderator
Glen E. Kraemer, Partner, Hirschfeld
Kraemer LLP, Santa Monica, CA
2
Speakers
John Lane, Vice President, Crisis &
Resilience Consulting , Control Risks
North America, Los Angeles, CA
Jeffrey J. Nolan, Partner, Dinse, Knapp &
McAndrew, P.C. and Senior Consultant,
Sigma Threat Management Associates, P.A.,
Burlington, VT
3
Speakers
Henry M. Perlowski, Partner, Arnall Golden
Gregory LLP, Atlanta, GA
4
New U.S. National Standard
• ASIS/SHRM WVPI.1-2011:
“Workplace Violence Prevention and
Intervention”
− Approved September 2, 2011
− Designed to mitigate risk to employer
− Does not create new legal
obligations...
− Confirms a proactive approach of
prevention and intervention
5
No New Legal Obligations…?
Sobering Reality
• Negligence concepts and the new
ASIS/SHRM standard:
− The “reasonable employer” argument
− Standards likely to become the new
plaintiff’s touchstone
6
Prevention Team
• Concept
– Proactive vs. reactive
• Purpose
– Develop, implement and monitor the
Workplace Violence Prevention Plan
– Provide a planned and strategic
approach for effectively addressing
workplace violence
7
Prevention Team
• Members
– Human resources
– Security
– In-house legal
– Employment law specialist
– Threat assessment specialist
– Employee assistance program
– Other ad-hoc members
8
Prevention Team Responsibilities
• Program development and
management
• Violence vulnerability audit
• Policies and procedures
• Communications
• Participate in threat assessment
process
9
Prevention Team Responsibilities
• Responds to workplace violence
threats/incidents
• Coordinate training plan
• Trauma response
• Act as resource specialist
10
Best/Promising Practices
• Multi-disciplinary team in the workplace
• Authority to engage in threat assessment
• Basic threat assessment training
• Standard threat assessment processes
and procedures
• Access to case management resources
• Active case monitoring
• Other resources that support threat
assessment operations 11
Supporting Resources
• Administration (and administrative)
support
• Advanced threat assessment training
and tabletop exercises
• Database and other documentation
• Strategies to promote awareness and
encourage reporting
• Reporting mechanisms
• Community relationships
12
Team Policies and Procedures
• Employers should work with counsel
to:
− Draft appropriate general workplace
violence prevention policies
− Draft threat assessment and
management team mission
statements and policies to describe
team fairly without over-promising
13
Team Policies and Procedures
• (Cont’d)
− Draft team procedures to optimally
outline process and team activities
and authority, without restricting
team’s need for flexibility in
particular cases
14
Team’s Functional Authority
• Team should have authority to do
the following on behalf of the
employer:
− Identify persons / situations of
concern
− Gather additional information
− Assess whether person / situation
poses a threat
15
Team’s Functional Authority
• (Cont’d)
− Develop and implement strategies to
reduce threat risk
− Monitor and re-evaluate threat
• Consider integration with disciplinary
processes
16
Encourage Reporting
• For effective reporting, people need
to know:
– Their role and responsibility to report
– What and where to report
– Reports are wanted
– Something will be done
– Regular reminders of issues and
process
17
Where to Report?
18
Threat
Assessment
Team Employee Assistance
Program
Website / Social Media
Managers & Supervisors
Police &
Security
Community
Co-workers
Related agencies /
groups
Risk Assessment “Filtering” Tests
• Troubled v. troubling
• Fearful, frustrated, predatory
(bullying)
• Depression, cognition, behaviors,
environment
• Levels of violence
19
Troubled v. Troubling
• Troubled – internalized stressors
and resulting low-level behaviors,
often showing up in performance
• Troubling – escalated, externalized
behaviors disrupting the workplace
20
Fearful, Frustrated, Predatory
• Levels of control
− Fearful – afraid of you taking control
from them
− Frustrated – out of control
− Predatory – wants to take control
from you
21
Workplace Violence Red Flags –
Depression
22
Depressed Mood Anergia
Anhedonia Worthlessness
Weight Changes Decreased concentration
Insomnia Recurrent thoughts of death
Psychomotor
Agitation/Retardation
Hopelessness
Self-esteem impacted
Workplace Violence Red Flags –
Cognitions
23
Obsession with weapons Holds a grudge
Obsessive involvement with
job
Interest in recently
publicized violent events
Unwanted romantic interest
in co-worker
Un-accepting of criticism
Low frustration intolerance Perceived unjust treatment
Paranoid
Workplace Violence Red Flags –
Behavior
24
History of violent behavior Loner
Direct or veiled threats Any extreme changes in
behavior
Carrying concealed weapon Intimidation
Low frustration intolerance
Tests limits of accepted
behavior
Level One Violence
• Refuses to cooperate with
immediate supervisor
• Spreads rumors and gossip to harm
others
• Consistently argues with co-workers
• Is belligerent toward others
25
Level One Violence (cont’d)
• Uses excessive profanity, primarily
of a sexual nature
• Makes unwanted sexual comments
• Expresses suicidal thoughts
• Inappropriate reasoning, impaired
judgment
26
Level Two Violence
• Argues increasingly with customers,
co-workers, vendors and
management
• Refuses to obey company policies
and procedures
• Sabotages equipment and steals
property for revenge
27
Level Two Violence (cont’d)
• Verbalizes wishes to hurt co-workers
and/or management
• Persistent non-mutual displays of
affection
• Sees self as victimized by
management
• Makes suicidal threats/gestures
28
Level Three Violence
• Physical fights
• Destruction of property
• Utilization of weapons to harm
others
• Attempts/commits suicide
• Murder, rape, arson
29
Environmental “Catalyst”
(Risk Factors)
• Toxic Supervisor
• Recent family, financial, and/or personal
problems
• Stress in workplace such as layoffs,
downsizing
• Substance abuse
• Neurological signs/head trauma
Warning Signs + Risk Factors =
Escalation of Threat 30
Domestic Violence Defined
• Domestic violence: The use of
physical, sexual, or emotional abuse
or threats to control another person
who is a current or former husband,
wife, or other intimate partner, such
as boyfriend or girlfriend.
31
A National Tragedy
• Victims and perpetrators
− 1 out of 3 women report physical
abuse by an intimate partner
− Majority of adult domestic victims are
women
− Most perpetrators are men
32
A National Tragedy
• Alarming Statistics
– Over 1400 women are murdered every
year by intimate partner
o Nearly 1/3 of women killed at work were killed by a current or former intimate partner
– 1,000,000 women per year are victims
of non-lethal domestic violence, such
as physical and sexual assaults
33
A National Tragedy
• Presidential memorandum requires all
federal agencies to develop and
implement workplace policies
addressing domestic violence
– February 2013: Federal Office of
Personnel Management issued
“Guidance for Agency-Specific
Domestic Violence, Sexual Assault and
Stalking Policies”
34
Domestic Violence: Impact
• Corporate Alliance to End Partner
Violence, 2005 Survey
– 21% of the full-time employed adults
polled identified themselves as
victims
– 64% percent of them indicated their
ability to work was significantly
impacted
35
Domestic Violence: Impact
– Impact on co-workers
o 31% felt obliged to cover for co-
worker who is a victim
o 38% were concerned for their own
safety
o 27% had to do the victim’s work
o 25% resented a co-worker due to the
situation
36
Domestic Violence: Risk Factors
• Recent break-up
• Prior physical violence
• Threats to harm
• Substance abuse
• Unemployed
37
Domestic Violence: Response
Strategies
• Role of the employer
– Respond to a DV issue appropriately
within the context of the broad
responsibility to maintain a safe and
productive work environment and within
organizational guidelines.
– Refer employee victims to qualified
professionals.
38
Domestic Violence: Response
Strategies
• DV case in which there is no
immediate workplace risk
– Document
– Provide work schedule adjustments
as appropriate or required by law
– Refer to qualified professionals
39
Domestic Violence: Response
Strategies
• Threat/risk to workplace
– Document facts and report to WPV
Prevention Team
– Determine appropriate work status
for victim employee. If employee is
to remain on current work status,
develop security protocol to assist
with his/her personal safety.
40
Domestic Violence: Response
Strategies
• (Cont’d)
– Provide referral to appropriate
professionals
– Determine if employer is the victim of
a crime
41
Domestic Violence: Response
Strategies
• Determine if additional workplace security
is necessary
• Maintain confidentiality of case; determine
if others might be at risk and inform as
appropriate
• Consider corporate restraining order
• Maintain on-going contact with victim
employee and monitor his/her response
actions 42
WE HAVE HEARD A PHRASE IN
THE NEWS FREQUENTLY SINCE
NEWTOWN …
“The best way to stop a bad guy with a
gun is a good guy with a gun.”
43
WE HAVE HEARD A PHRASE IN
THE NEWS FREQUENTLY SINCE
NEWTOWN …
“The best way to stop a bad guy with a
gun is a good guy with a gun.”
At least 20 states have laws
that agree with this principle
…
44
“Guns in the Trunks” Laws
• Carrying concealed weapons is legal
virtually everywhere
• There has been a proliferation of
“Guns in the Trunk” laws since 2004
• Significant legislative initiative of the
National Rifle Association
• Goal is to allow employees to bring
guns to the workplace as long as they
are concealed in employee vehicles
45
“Guns in the Trunks” Laws
• Significant legislative initiative of the
National Rifle Association (cont’d)
• Stated theory is to permit employees to
protect themselves during long
commutes and even at the workplace
• Vehicle as “personal property”
• Therefore, guns are in parking lots,
which may be employer property
46
“Guns in the Trunks” Laws
• States with “guns in the truck” laws
include: Alaska, Arizona, Florida,
Georgia (sort of), Idaho, Indiana,
Kansas, Kentucky, Louisiana, Maine,
Minnesota, Mississippi, Montana,
North Dakota, Oklahoma, Utah,
Tennessee (sort of), Texas,
Wisconsin, Wyoming
47
“Guns in the Trunks” Laws
• Some states also have “public
sector” rules – can carry concealed
weapons on, e.g., college
campuses, including at disciplinary
hearings
• These laws typically have carve outs
for specific kinds of workplaces
48
“Guns in the Trunks” Laws
• Some laws (Indiana is a model) provide
for private rights of action if employers
enforce policies contrary to the laws,
including the recovery of attorneys’ fees
and punitive damages
• Opposition groups (led by Chambers of
Commerce, large employers) have
started to oppose and/or chip away at
these laws based on the property rights
of employers to regulate their “property” 49
“Guns in the Trunks” Laws
• In Tennessee and Georgia, laws are
limited because employers can prohibit
the presence of guns if they “own,
lease, or otherwise legally control” the
property, e.g., the parking lot
• Proposed “guns at work” laws have
started to fail, including in the Deep
South (Alabama, South Carolina)
50
“Guns in the Trunks” Laws
• NRA is fighting back by downgrading
legislators and supporting primary
challenges
51
“Guns in the Trunks” Laws –
Employer Liability?
• OSHA challenges to these laws
have failed
• Some laws (Texas) provide that
employers cannot be liable for
resulting injury absent “gross
negligence”
52
“Guns in the Trunks” Laws
• Still places an increased need to monitor
where these laws are present because
employers know guns are at their
doorsteps:
− Ask for proof of authorization to carry
− Be vigilant about where guns can and
cannot be allowed
− Quicker to terminate? The violent or drunk
employee scenario …
− Use background checks and screens more
vigilantly … speaking of which …
53
Employers Use of Criminal
Background Checks
• 92% of employers report using criminal
background checks for candidates or
existing employees
• Several laws directly regulate the use
of criminal background checks in the
workplace:
– Fair Credit Reporting Act
– State consumer protection laws 54
Employers Use of Criminal
Background Checks
• BUT increasing scrutiny under federal
(and state) anti-discrimination laws
55
EEOC Guidance
• Guidance from the EEOC –
“Consideration of Arrest and Conviction
Records in Employment Decisions Under
Title VII of the Civil Rights Act of 1964”
(No. 915.002) – approved April 25, 2012
• Purpose was “to consolidate and update”
the EEOC guidance documents
regarding the use of arrest or conviction
records in employment decisions under
Title VII of the Civil Rights Act of 1964
56
EEOC Guidance
• Guidance reflects a presumption that
disparate impact exists and
presumption shifts to employers to
justify reliance on certain kinds of
criminal checks
57
Why Should Employers Care?
• The EEOC is finalizing its 2012-2016
Strategic Enforcement Plan (SEP),
which will guide its enforcement
priorities/actions
• #1 issue identified in the plan as a
nationwide priority is class-based
intentional hiring discrimination and
facially neutral hiring practices that
adversely impact particular groups 58
Why Should Employers Care?
• That means $$ are targeted to promote
those initiatives
• Use of “background screens” has been
identified as a potentially
exclusionary tool that could adversely
impact groups protected under the law
59
Highlights of the Guidance
• Differences between arrest and
conviction records
• Disparate impact analysis under Title
VII
• The “job related and consistent with
business necessity” standard
• Validation studies, targeted screens
and individualized assessments 60
Use of Arrest vs. Conviction Records
• EEOC continues to disfavor the use of
arrest records for employment
purposes because an arrest, on its
own, does not establish that criminal
conduct has actually occurred
• Guidance does not prohibit the use of
arrest records, but explains that “the
conduct, not the arrest, is relevant for
employment purposes” 61
Use of Arrest vs. Conviction Records
• According to the EEOC, an exclusion
based on an arrest, in and of itself, is not
job related and consistent with business
necessity
• EEOC: a conviction record will usually
serve as sufficient evidence that a person
engaged in the particular conduct at issue
• Thus, it’s difficult/impossible to have
blanket “need not apply” language in
advertisements and postings 62
Disparate Impact Analysis
• The applicable framework
− Plaintiff demonstrates that the employer’s
neutral policy or practice has the effect of
disproportionately screening out a
protected group and the employer fails to
demonstrate that the policy or practice is
job related for the position in question and
consistent with business necessity
(“JRBN”)
63
Disparate Impact Analysis
• (Cont’d)
− Think arrest records and race and/or
national origin
− If an employer successfully demonstrates
that its policy or practice is JRBN, the
plaintiff may still prevail by demonstrating
there is a less discriminatory “alternative
employment practice” that serves the
employer’s goals as effectively as the
challenged criminal record exclusion
64
Job Relatedness/Business Necessity
• The Eighth Circuit Court of Appeals,
in Green v. Missouri Pacific Railroad,
identified three factors (the Green
factors) that are relevant when
assessing whether an exclusion is
job related to the position in question
and consistent with business
necessity:
65
Job Relatedness/Business Necessity
– The nature and gravity of the offense
or conduct
– The time that has passed since the
offense or conduct and/or
completion of the sentence
– The nature of the job held or sought
66
Targeted Screen
• Guts of your decision matrix or decision
making should focus on the Green
factors:
– Nature and gravity of the offense or
conduct;
– Time elapsed since the offense,
conduct and/or completion of sentence;
– Nature of the job held or sought.
67
Targeted Screen
• Red flags:
– Blanket prohibitions whether in a
matrix or not
– Automatic “Fails” or “Reds”
disqualifying an applicant unless
some kind of exception applies (e.g.,
an exception authorized by federal
law)
68
Individualized Assessment
Employer actions:
• Inform the individual that he/she may be
excluded because of past criminal conduct;
• Provide an opportunity to the individual to
demonstrate that the exclusion does not
properly apply to him/her;
• Consider whether the individual’s additional
information shows that the policy as applied is
not job related and consistent with business
necessity
69
Individualized Assessment
What should an employer consider?
• Employee may provide information that
he/she was not correctly identified in the
report or that the report is inaccurate
• If above is not applicable. consider the
following with an eye on whether your
exclusion policy, as applied, is not JRBN:
70
Individualized Assessment
− The facts or circumstances surrounding the
offense or conduct
− The number of offenses for which the
individual was convicted
− Older age at the time of conviction, or
release from prison
• Evidence that the individual performed the
same type of work, post conviction, with
the same or a different employer, with no
known incidents
71
Individualized Assessment
• Length and consistency of employment
history before and after the offense or
conduct
• Rehabilitation efforts
• Employment or character references and
any other information regarding fitness for
the particular position
• Whether the individual is bonded under a
federal, state, or local bonding program 72
“Ban the Box” Initiatives
• Public interest initiative to ban use of
criminal history as automatic exclusions at
the application stage
• NOT a complete ban – just defer the
inquiry until later in the interview process
• The law in Massachusetts and in select
cities and municipalities
• Precludes national uniformity for the multi-
jurisdictional employer
73
Code of Newark, NJ Ordinance
• November 18, 2012 – ordinance went into
effect limiting employers’ use of criminal
history when making employment
decisions. Ordinance impacts job
advertisements too.
• Will apply to “any person, company,
corporation, firm, labor organization, or
association which has five or more
employees and does business, employs
74
Code of Newark, NJ Ordinance
persons, or takes applications for
employment within the City of Newark,
including the City of Newark and any City
department, agency, board, or commission,
or any employee or agent thereof.” Covers
paid and non-paid work as well as
vocational and educational training.
• Difference between what information credit
reporting agencies can report and what
information employers permissibly may use
75
ADAA – Potentially Applicable Laws
• What disability-related laws may
apply?:
− Federal Americans with Disabilities Act
and Section 504 of Rehabilitation Act
− State public accommodations laws /
disability-related employment laws
76
Definition of Disability
• An employee is protected if he or she
has a “disability,” defined as follows:
− A physical or mental impairment that
substantially limits one or more major life
activities
− Conditions affecting the operation of
necessary bodily functions
− Includes: mental health conditions that
substantially limit one’s ability to learn,
concentrate, think and communicate
77
Other Covered Individuals
• Disability laws also generally prohibit
discrimination against an individual
who:
– Has a “record” of having a disability
(such as a past diagnosis of mental
illness which is in remission at the
time of assessment) . . . or
– Is “regarded as” having a disability
78
Key ADA Concepts
• Key ADA concepts relevant to workplace
violence prevention/threat assessment:
− “Essential functions” of job
− Reasonable accommodations” requirement
− “Interactive dialogue” requirement
− Medical inquiries and “fitness for duty”
testing vs. assessment of
dangerousness/threat assessment
investigations
79
Otherwise Qualified/Direct Threat
• Individuals who cannot control
misconduct caused by a disability
may not be “otherwise qualified”
• Employers do not have to
accommodate an employee who
poses a “direct threat” to self or
others, considering:
80
Otherwise Qualified/Direct Threat
• (Cont’d)
− Nature, duration and severity of risk
− The probability that potentially
threatening injury actually will occur
− Whether reasonable modifications of
policies, practices or procedures will
sufficiently mitigate the risk.
81
Case Law and Practical Application
• Federal courts are divided as to whether
employers have to engage in
“accommodation dialogue” about
misconduct, or may instead simply sanction
misconduct without addressing disability
issue
• Example “not otherwise qualified” and
“direct threat” cases
• Practical application of case/statutory law to
workplace violence prevention and threat
assessment efforts
82
ADA Legal Considerations for Threat
Management Teams
• The Gambini v. Total Renal Care
dilemma, and application to
management of threatening behavior
• California Gets it Right: Wills v.
The Superior Court of Orange
County (April 2011, Cal. Ct of
Appeal)
83
ADA Legal Considerations for Threat
Management Teams
− Linda Wills threatened to put co-workers
on her “Kill Bill” list
− Sent cell phone ring tones and emails
containing threats to co-workers
− During investigation, asserted that her
conduct was the result of a mental
disability (bi-polar disorder)
− After termination, sued alleging her
conduct was result of disability
84
Wills Informs Terminations Based on
Disability-Induced Workplace
Violence
• Wills Court held:
“We interpret FEHA as authorizing an
employer to distinguish between
disability-caused misconduct and the
disability itself in the narrow context of
threats or violence against coworkers….”
85
Wills Informs Terminations Based on
Disability-Induced Workplace
Violence
Held: When an employee engages in threats
or violence, an employer is entitled to take
action, even if the employee’s conduct is
caused by a disability.
Wills limited to disability-induced threats and
violence, not other forms of misconduct
Applicable to California, but reasoning helpful
for all WVPTs
86
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