November 1, 2000
Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C.
YOU CAN BE LIABLE FOR EMPLOYEE VIOLENCE
IN YOUR WORKPLACE - BUT MAKE SURE THAT THE
CURE IS NOT WORSE THAN THE DISEASE
According to Bureau of Justice Statistics, each year U.S. residents experience more than two million violent victimizations while they are working. Fifty-six percent of these victims work for private employers. Past studies document that the average employer cost of responding to a workplace violence incident is at least $250,000, not including the indirect costs involved in the increased absences and turnover, and decline in morale, that result from employee perceptions that they work in an unsafe environment.
And it gets worse. Suppose one of your employees loses his temper and punches a colleague in the face during a meeting? Suppose, as the result of personal problems or mental illness, he suffers a complete breakdown and shoots a co-worker or a visitor at your workplace? Suppose he sexually assaults a co-worker or a customer? Anyone who reads the newspapers understands how commonplace these sorts of events have become. Can you be liable if one of your employees turns violent?
Generally, the answer is yes, if you were negligent (that is, if you failed to use reasonable care, as ultimately determined by a judge or jury) in the hiring, or the retention, of the violent employee. Negligent hiring occurs when, prior to the time the employee is hired, the employer knew or (and this is the kicker) reasonably should have known that the employee would be a problem. Typically, the victim's attorney will focus on the adequacy of your pre-employment investigation: if a reasonable (whatever that is eventually found to mean) investigation would have put you on notice of the employee's violent propensities, you may be on the hook. As for negligent retention, if the employee's actions while in your service, or other information you came to know about, reasonably (there we go again) should have put you on notice of the potential for violence, and you did not react reasonably (it never stops), you could be found liable.
So, to avoid potential claims, should you carefully screen potential employees for violent propensities, and clean house whenever an existing employee shows any signs of violence? Short of that, should you warn employees of a co-worker's violent potential so they do not blame you for keeping the secret? Here's where it gets complicated. Doctors sometimes report that the operation was a success, but the patient died; there is a similar potential here. Screening procedures used during employment interviewing can violate the Americans With Disabilities Act - be careful, and use counsel to guide you. Similarly, bouncing an employee with a temper problem can come back to bite you if the employee asserts that his problem is the result of a "disability," as defined by the ADA, which obligates you to provide a "reasonable accommodation." (See the August 1 and October 1 editions of Avoiding Lawsuits for some additional background on these issues.) Even more restrictive state human relations laws may also come into play, and other federal legislation may also be implicated, depending on the specific facts. And if you take a less drastic route and simply warn others in the workplace of an employee's violent propensities (or if you say the wrong things to the wrong people while you are investigating whether such violent propensities even exist), you could be facing a serious defamation claim.
Like so many things, the solution to all of this must be borne out of a preventive law partnership between you and your counsel: your job is to gather facts, spot problems and design business procedures and solutions, but before anything is cast in stone, you must obtain a legal consult to make sure that what seems like common sense to you does not (as it so frequently does) violate the latest federal pronouncement or state statute. This is not a commercial for lawyers; don't shoot the messenger. Unless and until the law in the employer-employee field begins to square with what most business people take as standard operating procedure and sound business judgment, there is no choice. In many areas of employer-employee relations, if you do what seems right, you will frequently promote a lawsuit.
Here is a proposed agenda of the sorts of things you ought to think about, and then finalize with the assistance of legal experts who have been down this road before:
- Develop a compliant (that is, not violative of legislation such as the ADA) pre-hire screening procedure. Make sure all applicants sign a release permitting you to perform a criminal background check and reference check, and diligently perform the checks as permitted by law;
- You must put yourself in a position where you can prove that you actively and intelligently monitored the workplace behavior of your employees. You and your managers should be trained to recognize risks factors and warning signs of workplace violence - telltale signs of psychological disorders, complaints of unusual levels of work stress, unexplained absenteeism, sharp declines in job performance, verbal threats against the company or individuals, fascination with guns, chemical dependency, overt insubordination, continuing conflict with supervisors, defiance, blatant violation of company rules and procedures, and harassment of co-workers or others. You must establish a compliant system for documenting potential problems and violent incidents in the workplace so you can prove you were taking "reasonable" precautions;
- You must put yourself in a position where you will know what to do with the information you gather. You and your managers must be trained not to overreact to risk factors and warning signs, particularly to the extent that a "common sense" reaction may create a separate, perhaps more serious legal problem. The ADA, the FMLA, defamation issues and lots more must be factored into the response. At the same time, you obviously would not want to be accused of sweeping a problem under the rug, or not realizing the significance of what you saw. You may wish to consider establishing a consultative relationship with trained psychological professionals who can advise you - again, this will show how "reasonable" you were in the precautionary steps you took;
- Utilize workplace violence prevention measures, such as nonviolent response and conflict resolution, stress management classes, and procedures in which all employees are encouraged (within defined boundaries and with assurances of confidentiality to the extent permitted by law) to report potential violence problems. Consider an employee assistance program or, at least, having professionals on call to address employee problems. Again, the more preventive measures you employ, the more likely you will be deemed to have acted reasonably;
- 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. The institution and enforcement of the policy will be another arrow in your quiver as you attempt to prove that you did all that could "reasonably" be done;
- Analyze your insurance coverages.
SUMMARY - It is a sad testament to our times that, in the arena of potential employment practices liabilities, workplace violence has now taken its place alongside of such issues as workplace discrimination and harassment. But it is what it is, and employers interested in avoiding lawsuits must take the appropriate preventive steps. The risk in doing so, however, is that the cure to workplace violence may create greater legal liabilities than the violence itself. Pursue a pro-active, but well-informed agenda.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
