violence in the workplace c. stuart mauney rims southeast educational conference september 14, 2011

Violence in the

Workplace

C. Stuart Mauney

RIMS SoutheastEducational Conference

September 14, 2011

OutlineOutline

I. Overview of Violence in the Workplace

II. Employer Liability for Workplace Violence

III. Preventing Workplace Violence

IV. Responding to Workplace Violence

Overview of Violence in the

Workplace

• Workplace shootings account for 10% of all work-related deaths per annum in the United States.

• Over the past 5 years, 2004-08, an average of 564 work-related homicides occurred each year in the United States.

• In 2008, a total of 526 workplace homicides occurred, or 10% of all fatal work injuries.

Workplace Violence StatisticsWorkplace Violence Statistics

• Workplace homicides are now the second highest cause of work related deaths in America, trailing only behind transportation fatalities such as workers killed in highway accidents.

• The average retail employee is more likely to be shot fatally by a co-worker than a construction worker is to fall to his death, or be killed by operating heavy equipment.


• In 2009, 12% of all work related deaths were homicides, out of the total 18% classified under the assaults and violent acts category.

Source: U.S. Department of Labor, Bureau of Statistics: Workplace Violence Fact Sheet, July 2010


Employer Liabilityfor

Workplace Violence

Employer Liability for Workplace Violence


I. Occupational Safety and Health Act of 1970 (OSH Act)

A. Duty to Provide Safe and Healthful Working Environment

“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his

employees.” 29 U.S.C. § 654(a)(1).



B. No Specific Standard for Workplace Violence

1. Draft Proposed Safety and Health Program Rule – Rejected

C. Workplace Violence Guidelines

1. Directed to health care, social services

and retail industries

+ However, are generic in nature and likely to be interpreted as being applicable to all industries



2. Components to effective safety and health programs

+ Management commitment and employee involvement

+ Worksite analysis

+ Hazard prevention and control

+ Safety and health training


Employer Liability for Workplace Violence 3. Instructions for management+ Allocate resources to violence prevention

programs+ Accountability for program implementation+ Provide Counseling+ Zero-tolerance policy+ Studies to identify trends and appropriate

security measures+ Barrier between employees and potential

perpetrators+ Comprehensive training and educational

programs



D. Civil Penalties

Employers who know that a risk of

violence is high and who fail to take action to protect employees may be subjected to civil fines.

E. Criminal Prosecution – Appropriate in “Egregious” Cases



II. South Carolina Statutory Provisions

A. S.C. Code Ann. § 41-15-80

1. South Carolina’s version of 29 U.S.C. § 654(a)(1)

B. S.C. Code Ann. § 41-15-510

1. Anti-retaliation provision



III. Negligence Liability

General Rule: Employers not vicariously liable for violent acts of employees.

However, negligence liability may be premised upon any of the following:

A. Duty to Warn

Where an employer is aware of a danger directed towards a specific employee, it has a duty to warn the employee of the danger.



B. Negligent Hiring

1. An employer has a duty to protect its employees and customers from injuries caused by employees whom the employer knows or should know pose a risk of harm to others.

2. Focus on whether the employer knew or should have known of violent propensities at the time of hiring.



3. Liability may also be premised upon failure to perform adequate background check such as checking references or contacting former employers.

4. Suggested actions:

+ Carefully review all information on

employment application

+ Question applicant about any gaps in employment history



+ Contact prior employers to verify dates of employment and positions held

+ Attempt to ascertain information from prior employers regarding applicant’s character

+ Document Efforts

+ Defer offering job until screening process is completed



+ Advise applicant of consequences of

omissions or misrepresentations on

application

Gary Mathiason, Terror and Violence

in the Workplace (1994).



C. Negligent Retention

1. Consider whether the employer knew the offending employee was “in the habit of misconducting himself in a manner dangerous to others.”

2. Employer may be required to discharge employee.

Doe v. ATC, Inc., 367 S.C 199, 624 S.E.2d 447 (S.C. Ct. App. 2005).



D. Negligent Supervision

1. May be liable for intentional harm by

employee if:

+ The employee is (a) on the employer’s premises or (b)

is using a chattel of the employer

AND



+ The employer knows or has reason to

know that he has the ability to control

his employee

AND

+ Knows or should have known of the necessity and opportunity for exercising such control

Moore by Moore v. Berkeley Cnty. Sch. Dist., 326 S.C. 584, 486 S.E.2d 9 (S.C. Ct. App. 1997).



E. Negligent Training

F. Tort Duties Arising from Contractual Obligations

“An employer also may have a legal duty arising out

of a contract which flows to a plaintiff with whom he is not in privity of contract. This occurs when an employer, by entering into a contract with an employee, places himself in such a relation with the plaintiff that the law imposes upon the employer an obligation, sounding in tort and not in contract, to act in such a way that the plaintiff will not be injured.”



IV. Contractual Liability

A. Company Policies

B. Employee Handbooks

PreventingWorkplace

Violence

Preventing Workplace Violence


I. Applicant Background Checks -- How to Avoid and Defend Against Claims of Negligent Hiring

A. Information obtained directly from the applicant

1. Carefully review the application form or

résumé

(a) Name

(b) Address

(c) Social Security Number



(d) Previous addresses

(e) Educational information

(f) Employment history

(g) Criminal convictions (with a statement that an affirmative answer will not automatically disqualify the applicant from consideration).

(h) Names of references



2. Interview

(a) Question the applicant about all

gaps in employment

(b) Ask why the applicant left previous

employment

(c) Question the applicant about

frequent job changes



3. Obtain consent/release from the applicant

for:

(a) Reference checks

(b) Obtaining a credit report, criminal

background check, and investigative consumer

report.



B. Reference checks -- contact all prior employers

1. Ask only questions that can be asked of the applicant under applicable federal

and state laws.

2. Areas of inquiry should include:

(a) Verification of employment dates

(b) Verification of positions held

(c) Reliability of the employee



(d) Work performance

(e) Participation or involvement in violent conduct

(f) Insubordination

(g) Dishonesty

3. Carefully document information received

4. Consider use of a release signed by the applicant to be forwarded to former employers



C. Access and Use of Criminal Records

1. Inquire about criminal convictions on

application form

2. Investigate gaps in employment or other

evidence of applicant misrepresentations

3. Consult public court records



4. When making employment decision, consider the following:

(a) Does the conviction relate to the employee's availability to work?

(b) Does the conviction relate to the employee's fitness to perform the particular position in question?

(c) Does the conviction indicate that the employee may be a threat to

safety in the workplace?



II. Investigations of Current Employees -- How to Avoid and Defend Against Claims of Negligent Retention

A. Promptly investigate all complaints involving

workplace violence.

B. Develop a policy concerning security and searches

1. Search of employer property

2. Search of employee’s personal items



3. Body searches

4. Substance abuse testing policy

C. Obtain a consent form from each employee

D. Retrieval of electronic messages

1. The Electronic Communications Privacy Act of 1986

2. Omnibus Control and Safe Streets Act of 1968

E. Surveillance



III.Train Supervisors

A. Supervisors should be trained to recognize early warning signs of a potentially

violent person.

Common warning signs that an individual

may be prone to violence in the workplace

include the following:



1. History of violent behavior

2. Obsession with weapons and/or fascination with the military

3. Makes repeated verbal threats of harm

4. A person who intimidates or instills fear

in others

5. A loner – socially isolated

6. Obsessive involvement with job



7. Being paranoid – view everything as a conspiracy

8. Holding a grudge – unnatural intensity of

feeling – disgruntled regarding perceived

injustice at work

9. Expressing desperation over family, financial, or personal problems

10. Propensity to push limits of normal conduct



11. Fascination with recent incidents of

workplace violence

12. Workplace events generating stress

13. Substance abuse/alcoholism

14. Vandalism/theft

15. Poor self-esteem

16. Difficulties in controlling temper



17. Cries for some type of help

18. Chronic disputes with management

19. Male between the ages of 30 and 40

20. Migratory job history

B. Supervisors should be trained to resolve conflict

1. Train supervisors in effective methods of communication and negotiation so they can attempt to resolve disputes in that manner.



2. Train supervisors to apply work rules and disciplinary procedures consistently.

C. Train supervisors in the proper method of handling employees during terminations

or labor disputes.

D. Train supervisors to deal with a potentially violent employee before a violent act

occurs. Supervisors should be on the lookout for changes in behavior. Document bizarre behavior or comments



2. Train supervisors to apply work rules and

disciplinary procedures consistently.

C. Train supervisors in the proper method of handling employees during terminations or labor disputes.

D. Train supervisors to deal with a potentially violent employee before a violent act occurs. Supervisors should be on the lookout for changes in behavior. Document bizarre behavior or comments

E. Conduct exit interviews



F. Ensure that all supervisors take appropriate steps when they become aware of an incident of workplace violence in order to avoid claims of negligent supervision. For example, in Brockington v. Pee Dee Mental Health Center, 433 S.E.2d 16 (S.C. Ct. App. 1993), the Mental Health Center avoided liability by taking immediate action upon learning of an employee's sexual assault of a client to prevent an employee from harming others. The Center’s actions included



isolating the employee from clients, conducting an investigation, and terminating his employment following the investigation. As a result, the South Carolina Court of Appeals found that the Center exercised reasonable care to control its employee while he was acting outside the scope of his employment and to prevent him from harming others once they knew of the necessity to control him.

G. Train supervisors to defuse a violent situation.



IV. Create a Workplace Violence Policy

A. Policy should emphasize that the employer

will not tolerate:

1. Harassment,

2. Threats of violence,

3. Intimidation,

4. Possession of weapons on company

property.



B. Policy should include a reporting procedure:

1. Human Resources Department

2. Consider the designation of a threat response team in the policy. The

team may consist of the following:

(a) Human resource personnel;(b) Security personnel(c) Psychological professionals; and(d) Legal professionals.



C. Policy should contain an enforcement provision.

V. Create a Safe Workplace Culture to Support Victims

A. No penalties for reporting violence, threats,

harassment, intimidation, possession of drugs/weapons

B. Reporting will remain confidential and information disclosed on “need-to-know” basis.



C. Provide enhanced safety and security to reporters

D. Provide referrals to ancillary professional services

VI. Establish Security Procedures

A. Require visitors to report to a single reception

area

B. Consider using an electronic access system



C. Upgrade lighting

D. Implement an after hours escort program

E. Use an intercom system

F. Use closed circuit cameras in access areas

G. Install an alarm system

H. Develop a duress notification system



I. Establish a relationship with local law enforcement agencies

J. Use of ID cards

K. Create, communicate, and practice emergency action plan

L. Train employees in CPR and first aid

M. Avoid having any one employee in office

during off hours.



VII.Termination of a Potentially Violent Employee

A. Involve more than one managerial employee.

B. Conduct on neutral territory – such as a conference room.

C. Emphasize business-related reasons for the

termination.

D. Alert security to be on standby and to discreetly escort the person from the premises.



E. Alert law enforcement of any potential

problems.

F. Alert the victim and provide special security

for the victim until the threats subside.

G. Consider obtaining a restraining order.

Case Study – Domestic Violence


Situation

A firm associate approached the Human Resources director with information that he is representing a staff member in a divorce proceeding. He states that the employee will be visiting with the HR director to give her further information. The associate reveals that the situation is very volatile and that steps will need to be taken for the employee’s protection.



Interview with the HR Director

The employee states that she has been in an abusive marriage for some time; that her spouse is a member of a local law enforcement agency and carries a gun. She also relates that previous calls for assistance from her local police station have been unsatisfactory in solving the problem. She also states that the abusive husband has told her that if she should seek a separation “she would be dead.” Nevertheless, she has decided that she must extract herself from the marriage and will, in fact, serve divorce papers on him on a date certain. The HR director assures her that everything will be done for her protection.



The Action Plan

After consultation with the associate, a firm Employment attorney and the Managing Partner, the following procedure is outlined:

1. Arrangements are made to have the employee

work on another floor the day of service and

for the remainder of that week. She is to be

sent home in a taxi on the day of service.



2. Receptionists on each floor are given a picture of the spouse and instructions to call Security and HR if he should appear. He is to be told that she is not at work that day.

3. Building Security is given a picture of the spouse with instructions to deny access to the elevator bank if identified. Security is also alerted to be prepared for an emergency call and alert to Firm’s panic message, “Mr. ISOP, please report to the 30th floor.”



4. Local police in the area of the workplace are alerted to a potentially dangerous situation.

5. The Domestic Violence section of the local police is alerted.

6. The Employee Assistance Program is contacted and the employee is put in touch with a counselor.

To protect the employee’s privacy, other employees are told only that she is doing a special project that requires a change of workspace.



The Result

On the date of service, the employee goes to the designated workspace. Though there is much tension, she is able to function and the day is uneventful. She continued to consult with the EAP throughout the divorce proceedings. Although this husband never arrived at the Firm, an action plan, with all necessary players alerted, was in place.

Responding toWorkplace

Violence

Responding to Workplace Violence


I. Conduct An Investigation

All threats of workplace violence should be taken seriously. As a result, every employer should formulate a plan for investigating threats or complaints.

A. Interview the individual making the report and obtain as much information as

possible concerning the threat. This information should include:

1. Who made the threat?



2. Who was the threat made against?

3. What was the specific language of the threat?

4. Was there any physical conduct which would indicate that the individual intends to follow through on the threat?

5. Names of witnesses to the threat or conduct.

6. Time and place where the threat or violent

conduct occurred.



7. Any threats or violent conduct by the

individual before this incident?

8. Any other relevant information.

II. Physical Security of the Employer’s Premises

A. South Carolina case law on premises security



1. In McBeth v. TNS Mills, Inc., 458 S.E.2d 52 (S.C. Ct. App. 1995), an employee was assaulted and killed on her employer's parking lot as she was preparing to leave the plant following the conclusion of second shift. The administrator of her estate sued the employer for negligently failing to provide adequate security. The administrator's expert witness testified that the mill failed "(1) to have an adequate security plan; (2) to know of all 'breach[es] of security' that occurred on the premises over a two year period,



including three thefts from vehicles, one act

of vandalism, one attempted theft from avehicle, and two thefts of property; (3) toproperly supervise shift changes despitesuspicions of disorderly conduct in theparking lot and three prior domesticdisturbances including one occasion[involving the individual who assaultedMcBeth], resulting in a plant supervisor[asking that individual] to leave thepremises; and (4) to properly investigate

thedisturbance involving [that individual].”



The expert was not allowed to testifyregarding the foreseeability of the

assault.The jury returned a verdict for thedefendant. The verdict was upheld

onappeal.

B. Methods to improve safety of physical facilities

1. Conduct a security review

2. Enhance lighting



3. Fencing

4. Locks

5. Computer card key system

6. Guards

7. Intercom system

8. Closed circuit television monitoring

system

9. Alarm system



10. Electronic warning system

11. Create secure/isolated locked reception

area

C. Review safety policies

1. Are employees trained in emergency procedures?

2. Are employees allowed to work late if there is no one else on the premises?

3. Is there a procedure for heightened security if a threat is made?



4. Are procedures in place to be sure security personnel are promptly notified when a potential threat is made?

D. Local law enforcement

1. Establish a relationship with the local police or sheriff's office prior to an incident of violence occurring. Such a relationship may be beneficial in several respects.



a. The law enforcement officers may be able to suggest possible security precautions.

b. The authorities may be able to offer information on the experiences of other companies in the area.

c. The authorities may be more receptive if a complaint is received from the employer concerning violence in

the workplace.

d. Response time may be improved.



III.Offer Assistance to Employees Affected by Workplace Violence

A. Providing counseling for victims.

B. Debriefing session for employees.

C. Providing counseling for employees not directly involved in the incident.

D. Allowing employees to take leave of absence.



E. Instituting new policies to prevent future acts

of violence.

F. Providing counseling to the victim’s family.

G. Providing counseling to the aggressor/assailant.

H. Aiding employees in job relocations.

Violence in the

Workplace

C. Stuart Mauney

RIMS SoutheastEducational Conference

September 14, 2011

violence in the workplace c. stuart mauney rims southeast educational conference september 14, 2011

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