Powell Trachtman Logan Carrle & Lombardo

Design Professional's Practice Bulletin

Volume 4, Number 1 — April 2000

This Bulletin addresses recent developments affecting Design Professionals as well as business concerns as important as the specific professional and technical issues they face.

Editors: Neil P. Clain and Richard J. Davies

Protecting Your Company and Your Employees from Workplace Violence

By Mary J. Pedersen, Esquire

You only need to look at the headlines and watch the eleven o'clock news to see that your office -- long isolated from outside influences -- is no longer secured from outer forces and that violence could easily creep-in. Although workplace violence usually occurs in such industries as retail sales, law enforcement and private security, no business or profession remains immune and the victims of violence include your livelihood and ability to operate your business.

According to the Bureau of Justice statistics, each year U.S. residents experience more than 2 million violent victimizations while they are working or on duty. Fifty six percent of the workplace violence victims work for private employers. According to the Bureau, the most common type of workplace violence crime is assault with an estimated average of 1.5 million victimizations occurring each year. The most extreme form of this violence, homicide, was the second leading cause of death in the workplace between 1992-1996 with more than 1,000 murders occurring each year. It seems the police are more likely to investigate your work place than is OSHA.

According to past studies, the cost of lost work and legal fees to employers like you can be as much as 4.2 billion dollars a year. The average cost of responding to such an incident is estimated at $250,000.00. Of course, besides these immediate costs, there are the latent ones, like downturns in productivity and increased costs of getting the job done. Remaining employees' perceptions of an unsafe working environment can lead to an increase in their absences, turnover, a decline in morale, increased security costs and increased disability or workers compensation claims. Finally, just when you thought you had paid all the costs associated with that violent incident, you can find yourself a victim of litigation by that injured employee. This is often the case when the perpetrators of the harm are co-employees.

All of these potential costs make it clear that employers cannot afford to ignore what exists outside their doors, and what may have been brought through them. Employers must take affirmative steps to prevent violence and adequately address it if it occurs. Through this article we want to provide you with a basic understanding of the potential liabilities of such violence and more important, the steps you can take to prevent, and protect against, workplace violence.

Employer Liability

The employer's alleged liability for the harmful acts of others in the workplace is based both in common law and federal and state statutes. The most commonly alleged basis of liability are the common law tort claims of negligent retention, negligent hiring and negligent failure to provide a safe workplace. Generally, in Pennsylvania an employer owes a duty to his or her employees to provide a safe workplace. Recovery for an employer's breach of this duty is usually limited to a claim for benefits under the Pennsylvania Workers' Compensation Act. The Act requires employers to pay workers' compensation benefits to an employee suffering injury, "arising in the course of his employment and related thereto." As an employer, you have, most likely, purchased workers' compensation insurance to cover these claims.

However, while the Act does require payment of such benefits for injuries which occur in the course of employmentit provides an important exception, often referred to as the "personal animus exception." The Act states that the phrase, "arising in the course of his employment," "shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment." The term "third person" is interpreted to include co-workers. As a result of this exception, the courts allow employees who are victims of workplace violence to assert tort and other claims against their employers alleging negligent failure to provide a safe workplace. These are claims for payments without the statutory limits of workers' compensation benefits. Worse yet, they are not covered by workers' compensation insurance.

Employers can also be subject to claims by victims based upon the theories of negligent hiring and negligent retention. The principal difference between the negligent hiring and negligent retention theories of liability is the time at which the employer is charged with knowledge of the employee's unfitness. Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness, and thus the issue of liability is resolved based upon the adequacy of the employer's pre-employment investigation of the co-worker's background. Negligent retention occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with a particular employee indicating his unfitness, and then fails to take action such as investigate, discharge or reassign. Because the court and juries examine the employer's conduct with 20/20 hindsight, it is far easier for the court to find your efforts in screening, hiring or investigating the violent co-worker inadequate.

Investigating Potential and Present Employees

Notwithstanding the benefits of screening and conducting internal employee investigations, these activities themselves pose problems.

For example, if the employer attempts to investigate a claimant's problem but does so improperly, it may face a defamation action by the accused co-worker based upon statements made during, or as a result of, the investigation, or upon statements made in an attempt to warn employees of another's threatening behavior.

Pennsylvania's defamation statute does provide defenses which may relieve an employer from liability. The most common defense is the conditional privilege. In the employment context, the courts recognize a conditional privilege for statements made in connection with employee discipline and recommendations. However, this privilege can be lost when the employer discloses information to those who are not "entitled to know" or when the defamatory statement does not relate directly to the employment relationship.

More problematic is the minefield of federal legislation into which you may wander if your screening and investigative efforts are not carefully and routinely performed. For example, the Americans with Disabilities Act and the Pennsylvania Human Relations Act prohibit an employer from asking job applicants about mental or emotional histories or treatment, unless the inquiry is specifically related to the prospective employee's ability to perform a particular job function.

Additionally, the Equal Employment Opportunity Commission ("EEOC"), which enforces the federal statutes relating to employment, takes the position that an employer can refuse to hire a person with a history of violence only when the employer can meet the difficult task of proving that the person poses a direct threat to health and safety. Further, the EEOC recently issued its Guidelines on Psychiatric Disabilities which require an employer to make reasonable accommodations to enable a person with a mental disability to meet conduct standards, including standards barring workplace violence or threats. How these particular guidelines will play out in workplace violence litigation is not entirely clear.

Although the investigation of present and potential employees can be a delicate endeavor, appropriate responses by you and your company to violent situations or complaints of violence, as well as affirmative actions taken to prevent violence, are essential if you want to limit the extraordinary costs of violence in the workplace. Outlined below are some guides to maintain the delicate balance required when moving through the minefield.

Taking Action and Preventing Workplace Violence

Learn to recognize risks factors and warning signs such as a history of violence, history of psychological disorders, complaints of unusual levels of work stress, verbal threats against the company or individuals, fascination with guns, chemical dependency, insubordination, continuing conflict with supervisors, defiance, blatant violation of company rules and procedures and harassment of any nature.
Pre-hire screening. Have applicants sign a release permitting the company to perform a criminal background check and reference check and then diligently perform such checks.
Keep track of employee absenteeism, dress, attitude, behavior, interpersonal relations, job efficiency and performance.
Train employees in nonviolent response and conflict resolution. Also consider providing stress management classes. Keep records of these training programs.
Institute workplace violence prevention training programs to educate employees to the signs and prevention techniques. Keep records of these training programs. Assure that all managers and employees understand that they must take all threats and violent actions seriously and report them.
Establish a system for documenting violent incidents in the workplace. This system should include the designation of a team to handle complaints, record complaints and follow investigations of complaints. Consider having professionals from the fields of medicine, security, law and employee assistance on call to address problems. Also become familiar with local police, fire and ambulance services.
Establish a system of investigating workplace violence. In doing so you must consider the federal and state laws regarding searches and other investigation techniques and the possible liabilities associated with investigations.
Establish a zero tolerance Workplace Violence Policy. The Policy should, for example, define workplace violence and threats, make clear that no acts of violence or threats will be tolerated, explain the consequences of violations of the policy and set forth the method by which employees are to report incidents of workplace violence
Review and assess existing security procedures relating to locks, guards, ID badges, outside areas, lighting and exit procedures.
Get to know your employees and acknowledge and communicate your appreciation for their work and contribution to your company.

Conclusion

Violence has clearly moved into the workplace and can bring extraordinary costs to your doing business. You can minimize those costs by recognizing the risks and managing them with the help of professionals. Although it is not an easy task, addressing workplace violence now, before it occurs, can save your company tens of thousands of dollars in litigation costs and other associated costs as well as help establish a safe and productive environment for your employees. We regularly operate employer training workshops and seminars and can assist in helping employers manage these risks.

This bulletin is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions and illustrations apply to specific situations.