Employers can't look away from workplace violence

Every HR professional knows that the threat of office violence has become a very real workplace issue. Along with benefits, recruitment, and recognition, violence prevention is now a job requirement for HR staff. Yet the shocking nature of workplace violence often prevents it from being handled pragmatically. Even those employers consider it to be a serious issue may not be taking the smartest, most practical approach. Attorneys Mark E. Brossman and Adam J. Heft of New York City-based Schulte Roth & Zabel, LLP, offer some insight into the growing phenomenon--and what you can do to keep it from becoming a reality in your workplace.

How successful are HR professionals today at keeping violence from their workplaces?

Fifty-seven percent of HR professionals who participated in the 1999 Society for Human Resource Management's survey on workplace violence indicated that violent incidents occurred at their offices during the two-and-a-half-year period ending July 1999. This was a significant increase from the 48 percent who reported experiencing acts of violence during the previous 30 months. In August 1999, nearly 25 percent of respondents to a nationwide Gallup survey of adults who were employed full- or part-time indicated that they were "generally at least some-what angry at work." The Occupational Safety and Health Administration estimates that nearly 1,000 workers are murdered and 1.5 million assaulted in the workplace each year.

So workplace violence can end in murder?

Homicide is the second leading cause of death among American workers--and the leading cause of death for female workers. Workplace violence was 10 times more prevalent in the 1990s than in the 1980s. Fifty-one percent of workers fatally injured on the job in the New York, northern New Jersey and Long Island metropolitan area die as a result of a violent act. That's more than double the national rate, 21 percent. The average direct cost to employers of a single violent episode is $250,000, and the aggregate cost to employers has been estimated to be as much as $36 billion. The indirect costs resulting from these incidents--which can include decreased productivity, increased stress, and greater employee turnover--significantly add to the burden on employers.

And what's the employer's liability for workplace violence?

The Occupational Safety and Health Act of 1970 obligates employers to furnish each of [their] employees with a place of employment which is free from recognized hazards that cause or are likely to cause death or serious physical harm. The federal government prosecutes violations of the act; employees don't have a private right of action. So that's the first line. But violence in the workplace has the potential to subject an employer to additional liability.

How's that?

Case law has established that employers are obligated to "use reasonable care and refrain from knowingly retaining a person with known dangerous propensities in a position that would present a foreseeable risk of harm to others." Employees harmed by workplace violence may file claims for negligent retention, negligent hiring, negligent supervision, and violations of the duty to provide a safe workplace. The remedy for these violations is typically a claim against the employer's worker's compensation insurance. However, when it can be established that an employer's wrongful conduct against an employee was intentional, or when a third party files a negligence claim against an employer for an employee's violent acts, employer liability is not limited to recovery under worker's compensation. A nightclub might beheld liable if a bouncer injures a customer and the nightclub knew of the bouncer's violent propensities. Further, an employee who is the victim of an intentional wrongful act by an employer can sue for d amages resulting from the act--medical bills, lost wages, emotional distress, and so on.

What behaviors or risk factors should employers watch for?

Obviously, no single factor is determinative--and employees who don't exhibit the typical behaviors may end up engaging in violent acts. But the Federal Bureau of Investigation and industry experts did put together a list of red flags, which are:

* obsession with weapons

* repeated direct or veiled threats

* obsessive involvement with the job

* paranoid, aggressive behavior

* unwanted romantic interest in a co-worker

* overreaction to company policies

* refusal to accept criticism

* interest in recently publicized violent events

* increased mood swings

* damage or destruction of company property

* poor workplace relationships

* decreased productivity or inconsistent work performance.

Workplace violence-prevention programs are now a necessity, correct?

Proactive steps should be taken to decrease the likelihood of violent acts in the workplace--and doing this can reduce the employer's liability if such incidents take place. Employers should implement programs and training sessions similar to those designed to prevent sexual harassment. When facing OSHA claims, employers who have implemented a workplace violence-prevention program are in a better position. Obviously, each workplace environment is unique, and so should be the attendant program. However, there are elements that should be included in any program designed to minimize workplace violence.

What are the basic steps?

Employers should develop and implement a written policy that unequivocally rejects any tolerance for violence in the workplace and requires employees to immediately, completely, and accurately report any violent incidents. The policy should assure employees that the employer will protect victims and reporters of violent incidents against any form of retaliation or discrimination. The policy should be distributed to all employees, ideally as part of the employee handbook.

What should be done as far as pre-employment checking goes?

One effective way to prevent workplace violence is to avoid hiring employees who demonstrate an inclination to commit violent acts. Unfortunately, this is easier said than done. Despite the difficulties inherent in making this determination, employers should conduct pre-employment screening. Various psychological tests have been developed that indicate violent propensities. Screening may provide a defense to claims of negligent hiring or negligent retention, but employers must be certain to adhere to restrictions mandated by applicable federal and state law. For example, many states prohibit discrimination based on arrest records. Federal law restricts background investigations of prospective and current employees.

What kind of training should be done?

Employers should design and conduct detailed workplace violence-prevention training programs for all employees. These training programs should focus on teaching employees how to recognize and report suspicious activity and should provide written information on whom to contact in an emergency. Employers should also instruct select members of management on responding to violent incidents. Topics to be covered in the management training sessions should include providing emergency treatment to victims, conducting debriefing sessions with employees, and effectively managing media coverage.

What other steps should be considered?

Employers should consider offering confidential employee assistance programs to help workers cope with stress and manage anger. These programs are often able to resolve potentially serious problems before they become disruptive or lead to violence. Employers should develop policies designed to encourage communication in the workplace. Effective examples might include scheduling regular meetings in which employees can express concerns and grievances without fear of retaliation, implementing complaint resolution procedures, establishing confidential hot lines, and allowing employees to leave anonymous notes for HR reps or supervisors.

What about former employees?

Implement a policy restricting or eliminating access to the workplace by former employees and the public. In order to be most effective, this policy should be distributed to all employees and posted where it can be easily observed by visitors. Employers should also review their security systems to determine if additional effort should be directed toward maintaining a safe environment. Many recent acts of workplace violence have been committed by former employees. Employers can reduce their exposure to violent acts by ensuring that terminated employees are treated with respect. The employment relationship should end in a manner that allows former employees to maintain their dignity. In addition to following these guidelines, employers should not be deterred from changing all necessary passwords, collecting keys, and taking whatever additional steps are necessary to restrict former employees' access to the workplace. Employers should also consider offering outplacement counseling as part of severance packages. Outplacement counselors are trained to diffuse hostility that may be directed at the employer or the terminated employee's former supervisors.

Any final advice?

Employers can no longer afford to ignore workplace violence. Violent incidents are too common and cause too much damage to be overlooked. During the 1990s, employers were forced to address an increase in allegations of sexual harassment. Workplace violence should be approached in much the same way. Proactive steps can decrease the chances that a violent incident will occur at the workplace and reduce employer liability if such an incident does occur. Employers in every industry should examine their operations and their workplace environment and adopt an individually tailored program designed to reduce the threat of workplace violence.

Gillian Flynn is editor-at-large for WORKFORCE.

COPYRIGHT 2000 ACC Communications Inc.
COPYRIGHT 2001 Gale Group