workplace violence kingsport 2013.ppt [read-only]

Workplace Violence:Identification, Prevention and If the Worst Happens, Evaluating Exposure

Brent B. YoungJohnson City, [email protected]

2www.bakerdonelson.com© 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Violence In Our Society

• Newtown

• Aurora

• Intersection of Labor & Employment


Overview

• Problem Confronting Employers – Why is important to be proactive?

• Potential Exposure

• Implementing Workplace Violence Prevention Programs


• What is Workplace Violence?− Employees directing violence at other employees or

employers− Customers, patients, or visitors violent against

employees− Domestic related violence spilling over into the

workplace− Property directed violence− Terroristic violence

Workplace Violence


• In 2009, 572,000 nonfatal violent crimes against people 16 years or older while they were at work or on duty

• Down from 6 in 1,000 violent crimes per 1,000 employed persons in 2002 to 4 in 1,000 in 2009

Workplace Violence


• Where are the highest risks of workplace violence?− Postal workers get a bad rap− Late night retail− Taxi drivers− Police officers− Healthcare workers

Workplace Violence Impact


• Economic costs are enormous

• Lost productivity

• Work disruptions

• Employee turnover

• Litigation

• Health problems in employees – insomnia,

hypertension, depression

Workplace Violence Impact


Hartford Distributors

• August 3, 2010• Killed 8 Co-Workers• Motivated by perceived

discrimination• Had complained that he found

a drawing of noose and racial epithets on bathroom wall

• Terminated for theft of beer• Started rampage while being

escorted out following union grievance meeting

Workplace Violence


Fort Hood, TX• November 5, 2009• Among the 13 killed were 12 soldiers, one

of whom was pregnant, and a single Army civilian employee.

• 30 others were wounded and required hospitalization.

• At approximately 1:34 p.m. the shooter, Nidal Malik Hasan, entered his workplace.

• According to eyewitnesses, he took a seat at an empty table, bowed his head for several seconds, and then stood up and opened fire.

• Hasan reportedly jumped onto a desk and shouted: "Allahu Akbar!", before firing more than 100 rounds

Workplace Violence


Austin IRS Office

• Joe Stack flew plane into IRS office on February 18, 2010

• Pilot died in crash. One employee died and others injured

• Set fire to his home before crash.

• Stack vehemently opposed the IRS

Workplace Violence

Legal Implications of Workplace Violence: Potential Exposure


Workers’ Compensation

• Workers’ compensation is the exclusive remedy for employees when the injury “arose out of” and “in the course of employment”

• Compensability of workplace assaults− Employment relationship places employee at

increased risk of harm − Employment-related disputes− Intentional tort / Harassment

Legal Implications


Negligence-Based Theories

• Hiring

• Retention

• Supervision

• Training

Legal Implications


Legal Issues With Criminal History Checks

• Employers between rock and hard place− Americans with Disabilities Act− Negligent Hiring

• FCRA Release


TN Workplace Violence Act

• Tenn. Code Ann. § 20-14-101• Temporary Restraining Order• Requires violence or credible threat of violence to be

carried out in workplace


Guns In Parking Lots In Tennessee

• Safe Commute Act• Senate Bill 142• Moving on to the House• Interesting Opposition


Americans with Disabilities Act (ADA)

• Limits pre-hire questioning and screening techniques used by employers to identify potentially violent employees

• Employers can also be liable for employment termination decisions if due to a disability

• Qualification standards and physical and mental requirements for employment are allowed if they are necessary and substantially job related


OSHA Requirements

• General Duty Clause

− An employer is obligated to furnish to each of its

employees employment at a place of employment

which is free from recognized hazards that are

causing or likely to cause death or serious physical

harm to its employees.

• Applies to all private employers who are engaged in

business affecting commerce


Is Workplace Violence a “Recognized Hazard?”

It all depends

• If it cannot be foreseen or controlled by the employer, it would not be a recognized hazard

• OSHA has equivocated.

Addressing Workplace Violence


Addressing Workplace Violence

• Identifying Risk Factors for Violence:− Working directly with volatile people, especially those

under the influence of drugs or alcohol or have a history of violence

− Long waits for service− Overcrowded, uncomfortable waiting rooms− Working alone− Inadequate security− Lack of staff training− Poorly lit corridors, rooms, parking lots, and other

areas


What to Do?

Six Steps to Prevent Workplace Violence


STEP ONE:

• Establish a Workplace Violence Prevention Team to create, communicate, and implement all violence prevention plans, policies, and guidelines


STEP TWO: Complete a Violence Vulnerability Audit

• Analyze all premises, systems, employees, and customers who interact with employees

• Also look at security systems to assess preparation for violent incidents


STEP THREE: Establishing Policy and Procedures

• Adopt a formal, written Workplace Violence Policy• Include the Policy in your procedures manual• Implement results of the Vulnerability Audit and the

planned security procedures for responding to violent incidents

• Delineate prohibited behaviors/actions and warning signs

• Establish levels of discipline• Establish an employee assistance program to help

employees deal with stress-related problems


STEP THREE: Establishing Policy and Procedures (Cont.)

• Five components to an effective violence prevention program:− Management commitment and employee involvement− Worksite analysis− Hazard prevention and control− Safety and health training− Recordkeeping and program

evaluation


STEP FOUR: Communicate the Policy and Procedures

• All employees must receive a copy

• Educate all employees on the types of violence and warning signs

• Tell workforce how to report a threat or act of violence


STEP FIVE: Training

• Goal: To educate all employees and supervisors to spot warning signs and what to do once they recognize them

• Training methods should be different and increasingly detailed for employees, managers and supervisors, and Prevention Team members


STEP SIX: Put the Program Into Action

• Thorough pre-employment screening (Reexamine and Reevaluate)

• Drug Testing

• Following the interview, thoroughly check references


STEP SIX: Put the Program Into Action

• Terminate employees in the proper way• Take all threats seriously (Investigate—interview all

witnesses, take written statements, and obtain a complete version of the facts from the accused employee)

• Maintain strong and workable employee communications network. Establish a confidential “hotline” for employees to report concerns and/or troubling incidents

• Conduct opinion and attitude surveys to ascertain how employees feel about the work environment and encourage participation of all

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