Written by Emma J. Hodson, Esq., attorney with The Van Winkle Law Firm
The best defense against workplace violence is a strong offense.
August 20, 2017, marked the 30th anniversary of the first nationally publicized incident of workplace violence, the shootings in a post office in Edmonton, Oklahoma. Following the Edmonton incident, the phrase “going postal” became a pejorative moniker for workplace violence.
The Occupational Health and Safety Administration (OSHA) defines workplace violence broadly as “any act or threat of physical violence, harassment, intimidation, or other threatening or disruptive behavior that occurs at the work site… rang[ing] from threats and verbal abuse to physical assaults and even homicide.”
In 2015 the Bureau of Labor Statistics reported that out of 4,836 fatal workplace injuries in the United States, only 417 were caused by homicide. Although workplace violence incidents that result in death remain relatively rare, nearly two million Americans report being victims of workplace violence each year.
Workplace violence is not limited to businesses that are frequent robbery targets (e.g., convenience stores). While external acts by a criminal or terrorist are certainly a type of workplace violence, healthcare providers and other businesses and nonprofits providing social assistance are often targets of violence by disgruntled patients and clients. Additionally, all workplaces are susceptible to violent acts committed by employees and former employees, as well as individuals who may be physically abusive to an employee.
For businesses and nonprofits, workplace violence can result in not only the loss of valued colleagues, but also economic losses due to damaged employee morale, decreased productivity, and potential office closures. Clients often ask what additional exposure they might have following an incident of workplace violence, and unfortunately, legal expenses can be significant. For example, businesses and nonprofits may incur expenses in dealing with workers’ compensation claims for both physical injuries and post-traumatic stress and may have to pay regulatory penalties to OSHA. Additionally, employers can be held liable for the actions of third parties on a premises liability theory of negligence, and for the conduct of employees on the basis of negligent hiring, retention, supervision, entrustment, and/or training.
Understanding risk factors for your business or nonprofit, recognizing warning signs in individuals who might perpetrate workplace violence, taking steps to develop policies and procedures, including an incident response plan, and utilizing law enforcement and our court system can help to mitigate many of these risks.
Understanding Risk Factors
When considering risk factors, it is often helpful to think about the types of workplace violence. Taxi cab drivers and small retail and dining establishments that are open late at night tend to be at a greater risk of violence committed as part of a robbery or other criminal act. Companies that sell or deal in high value assets (e.g., art galleries, jewelry stores, and banks) may also be at a slightly greater risk for this type of violence.
Businesses, nonprofits, and other organizations that serve the public (e.g., schools, healthcare and social service providers, courts, correctional institutions, customer service contractors, unemployment offices, homeless shelters, and law enforcement agencies) are often at risk for violence from customers, clients, and service recipients. Additionally, businesses that serve alcohol are often at risk for this type of violence.
Unfortunately, any company can be susceptible to violence from an individual who has had an employment relationship with the company or from an individual who has been domestically abusive to an employee of the company.
Recognizing Warning Signs
Crimes committed by third parties can often be difficult to predict, but companies can potentially recognize warning signs in patients, customers, clients, employees, former employees, and employees who are domestic violence victims. For employees and customers, warning signs include: difficulty managing anger, dehumanizing others, inflexibility, collecting injustices, making statements that approve of violence to solve problems, and an exaggerated sense of entitlement. Other than visible bruises or injuries that appear to have come from choking, punching, or sprained wrists, an employee may be in an abusive relationship if you observe that he or she has little money available, cannot access a car, has to seek permission to attend work events, has low self-esteem, appears sad or hopeless, loses interest in work activities, refers to a partner’s temper but does not disclose the extent of the partners’ anger, or shows warning signs of suicide.
Developing Policies and Procedures
Understanding risk factors can be helpful at developing policies and procedures directed toward workplace violence. You may want to consider adopting a zero tolerance for workplace violence as part of your employee handbook or a separate employee policy. Additionally, having thorough evacuation and incident response plans (IRPs) that are specific to situational dangers and training employees and key personnel on your IRPs is crucial. For example, your evacuation plan for a fire might differ from your response to a shooting. While it is a good idea to have employees gather at a centralized location in the event of a fire to determine who is missing and advise arriving firefighters of this fact, instructing your employees to gather across the street during a shooting would potentially make them vulnerable to a gunman.
Nonetheless, you will want to be able to figure out how to account for everyone who exits and be able to advise police on who might still be in the building.
Your incident response plan also should have guidelines for what to do after an incident of workplace violence. You will need to be able to quickly contact key personnel and third party contractors (e.g., your insurance broker, PR firm, attorney, etc.) and be prepared to answer employee questions (e.g., “May I re-enter the building to grab my purse?” “Do I come to work tomorrow?” “Will I get paid for tomorrow?” etc.). Having quick access to key contact information and guidelines to answer employee questions will help you in the midst of chaos.
Working With Law Enforcement and the Courts
Law enforcement agencies have created invaluable resources that are of great assistance in creating evacuation and incident response plans. Law enforcement may also be willing to help companies identify security hazards and mitigate risks to help reduce criminal activity. Additionally, if you have reason to anticipate that a person who might threaten violence may come to your company, you may want to request assistance from an off-duty officer. Finally, if an employee is a victim of domestic violence, stalking, threats, or harassment from any individual, you may want to seek a civil no-contact order pursuant to the North Carolina Workplace Violence Prevention Act. To obtain this order, you must have input from the employee about whether he or she has any safety-related concerns about participating in the process. Through a no-contact order, a court can order a person who is threatening your employee not to visit, assault, molest, or otherwise interfere with your company’s premises or operations and to cease stalking, harassing, or contacting your employee. A no-contact order is valid for one year and can be renewed annually.
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Ultimately, no one can predict with 100 percent accuracy that a crisis will occur, but even the best company can have an employee whose relationship with an abusive partner spills into the workplace. Taking steps to prevent and plan for workplace violence incidents will help fulfill your ethical and legal obligations to your workforce and will ultimately protect your company should the unthinkable happen.
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