Violence in the workplace is receiving increasing attention as a matter of public concern and priority, but practical solutions and tangible advice remain in short supply. Where does this leave the employer? What are the employer's responsibilities to employees' general safety and health before violence occurs? What are the employer's duties toward the offending employee during and after an incident, and to that employee's co-workers? Lastly, what are the employer's liabilities at the end of the day?
The law regarding workplace violence does not provide clear, comprehensive guidance for employers. Some direction may be discerned, however, by examining how various components of the issue have been addressed thus far.
* OSHA, through voluntary guidelines, outlines preventive measures and educates employers by breaking down the subject of workplace violence into practical risk factors and methods for prevention.
* The courts and the Equal Employment Opportunity Commission (EEOC) clarify the employer's competing liabilities to the threatening employee and his or her co-workers, with the emerging direction of the law appearing to give the employer latitude in dealing with a violent or threatening employee.
* Worker's compensation law provides parameters for the employer's liability to the injured employee, often by limiting the availability of tort suits against the employer.
The purpose of this article is to analyze the problem along the lines of its component issues and to provide some basic direction for employers in addressing workplace violence.
OSHA's Nonmandatory Guidelines
OSHA recognizes that violence in the workplace is a major contributor to employee injuries, but has not developed standards regarding the problem. Instead, in March 1996, OSHA issued voluntary guidelines for preventing workplace violence in health care and social service workplaces. These were followed by draft guidelines for night retail establishments. Both sets of guidelines state that they are not for enforcement purposes. The utility of the guidelines lies with the assistance they lend to employers generally in identifying risks and enumerating steps to prevent workplace violence.
First, the guidelines identify risks of workplace violence in particular industries and outlines risk factors. Based on statistics, OSHA categorizes the health care, social services, and night retail industries as having a greater propensity for threats and violence.
OSHA also establishes "risk factors" which indicate an increased danger of work-related assaults. These factors include exchanging money with the public, working alone or in small numbers, working either late at night or early in the morning, working in high-crime areas, guarding valuable property, having contact with the public, and delivering services and goods.
As a practical matter, these factors may assist an employer in analyzing how likely it may be to encounter workplace violence. As a legal matter, employers who do not qualify under such lists have used them to explain to courts why a violent incident was not foreseeable and that the employer had no reason to know that such violence was a possibility.
Second, the guidelines suggest an approach to dealing with the problem which employers may or may not find appealing depending on factors such as their size, resources and whether they are union or nonunion. The guidelines identify the four main elements of a violence prevention program, and then specific steps that employers can take to implement each element. They include:
Management commitment and employee involvement: Concern for safety and health, assigned responsibility for the program, allocation of authority and resources, counseling and debriefing for employees, employee suggestion/complaint procedure, prompt and accurate reporting of violent incidents, and training and education;
Worksite analysis: Analysis of "potential hazards" for workplace violence (including reviewing injury and illness records and workers' compensation claims) and establishment of a threat assessment team (comprised of representatives from senior management, operations, employee assistance, security, safety and health, legal and human resources);
Hazard prevention and control: Engineering or administrative and work practices to prevent or control hazards; and
Safety and health training: Regarding workplace violence prevention program, ways of preventing or diffusing volatile situations, policy for reporting, and policy for obtaining assistance after a violent incident.
Does OSHA's use of nonmandatory guidelines rather than standards mean that OSHA lacks enforcement authority concerning workplace violence issues? Yes and no. As explained earlier, OSHA has publicly stated as a matter of policy that it would not seek to enforce the guidelines. However, there ultimately are no legal barriers to OSHA issuing an employer a citation for workplace violence under the General Duty Clause, Section 5(a)(1), of the Occupational Safety and Health Act of 1970. Such citations are unlikely to be frequent, however, given OSHA's past history with such citations and the difficult burden of proof which OSHA would likely face in establishing such a workplace violence violation.
In one case, OSHA cited an employer under the General Duty Clause only to have the citation vacated by a judge of the Occupational Safety and Health Review Commission. In Megawest Fin., Inc., 1995 OSAHRC LEXIS 80, *32 (OSHRC Docket No. 93-2879, May 8, 1995), the employer managed an apartment complex where the employees were continuously threatened and assaulted by the tenants. Id. at *8-12.
For example, various residents had sprayed mace into the faces of two office workers (who were hospitalized with damage to their eyes), smashed and broken a telephone on the hand of a property manager, threatened a property manager with a two-by-four board, kicked the office door down, attacked an office worker and scratched her face causing scarring (this occurred in the presence of the OSHA compliance officer), and verbally threatened the employees. The judge identified the staff's interactions with tenants as a "hazard" under the Act. Id. at *19-20. The judge did not require that there be a significant possibility that harm would result or that any injuries would be foreseeable. Instead, he held that a workplace hazard existed if an incident could "occur under other than a freakish or utterly implausible concurrence of circumstances." Id. at *23.
However, the judge vacated the citation because the "hazard" was not generally recognized as a safety and health hazard by either the employer or its industry prior to the incidents.
The judge stated that "[i]t is not enough that an employee may fear . . . the violent attacks, even if that fear is communicated to the employer, and even if the employee is one whose knowledge can be imputed to the employer. Nor is it sufficient that there has been a previous injury from a violent incident." Id. at *29.
Additionally, hazard recognition was found lacking because the rental industry was not included in the list of risk industries and the employer did not fit the list of risk factors as identified by OSHA. Id. at *29-32. Moreover, the employer complied with many of the recommended preventive measures (which are now included in the guidelines). Id. at *32. The citation was vacated. Id. at *32.
As more employers acknowledge workplace violence and implement programs to address it, it may become more difficult for cited employers to assert that the hazard is not one recognized by their industries.
Rights of the Employees
If a violent or threatening incident occurs in the workplace and the offending individual is an employee of the company, the employer must be cognizant of the competing rights of (and potential liabilities to) the violent employee and his or her co-workers.
Employee rights are granted by a number of sources including individual employment contracts, collective bargaining agreements, statutes such as the various state, local and federal civil rights statutes, and sometimes from policies and procedures utilized by the employer.
To the extent possible under the circumstances, the employer should consider following the procedures outlined in applicable contracts or policies before taking any adverse employment action against a threatening or violent employee. This may seem to be a simple statement, but when violence enters into the picture, following any "policies" or "procedures" may not be an employer's first instinct.
For example, if the employer has a collective bargaining agreement with a union, to the extent feasible the employer should follow the steps in the agreement before terminating or disciplining the employee. In International Union v. Micro Manufacturing Inc., 895 F. Supp. 170, 171 (E.D. Mich. 1995), an arbitrator ordered an employee reinstated after the employer fired the employee for assaulting and battering the owner. Contrary to the terms of the collective bargaining contract, the owner terminated the employee on the spot, without a union representative being present. The court ordered the employer to reinstate the violent employee. Id. at 172, 175.
Also, the employer should be consistent in the enforcement of its discipline and termination policies. Employees who threaten or cause violence have sued their employer for discrimination in situations where discipline was not dispensed evenly. See Moodie v. Federal Reserve Bank of N.Y., 862 F. Supp. 59, 60 (S.D.N.Y. 1994) (Employee dismissed for assaulting a co-employee; employee claimed discrimination because the co-employee was not dismissed).
The stickiest situation arises when the threatening employee claims that his or her violent or threatening behavior is a result of a disability that is protected under the Americans with Disabilities Act ("ADA"). In this situation, an employer must be careful that any adverse employment actions taken against the employee fall within the limits of the ADA.
For example, in Collins v. Blue Cross Blue Shield, 916 F. Supp. 638, 638-39 (E.D. Mich. 1995), the employer was held liable for discrimination when the employer terminated the employee for making a threatening statement against her supervisor. The employee told her psychiatrist that the employee's supervisor was "living on borrowed time and doesn't know it" and that "I have killed her a thousand times in my mind." Id. After learning of the statements, the employer terminated the employee. Id. The arbitrator found that the statements were the result of the employee's disability and that a termination based on these statements was tantamount to discharging the employee because of her disability. Id.
These decisions are noted more to suggest proceeding cautiously than as well accepted law limiting an employer's latitude in dealing with an employee whose disability causes violent behavior. Although the case law differs by jurisdiction, the majority of the courts, as well as the EEOC, will not permit violent or threatening employees to hide behind the ADA.
For example, in Palmer v. The Circuit Court of Cook County, 905 F. Supp. 499, 501-3 (N.D. Ill. 1995), an employee threatened a co-employee with bodily harm and was terminated for her pattern of abusive behavior. The court found that the employee was not qualified for the position even though she could perform the substantive functions of her job, because she could not get along with her supervisors or coworkers. "The essential functions of any job include avoidance of violent behavior that threatens the safety of other employees." Id. at 509. Moreover, the "ADA's requirement to make 'reasonable accommodation' for the disabled in no way requires an employer to place its other employees in jeopardy."
Id. at 511; see also Hartog v. Wasatch Academy, 909 F. Supp. 1393 (Utah 1995) (citing letter from EEOC; "the EEOC has consistently maintained that an employer may hold all employees . . . to the same conduct standards. This would certainly include rules prohibiting violence or the threat of violence in the workplace. Although an employer may be required to provide reasonable accommodation (when requested in advance) so that the individual can meet the conduct standards, an employer would not be required to rescind discipline for misconduct").
The courts and the EEOC as a general matter do not require an employer to retain an employee who is violent or threatening to the other employees. However, as these cases indicate, the violent and threatening employee does have some competing rights. Employers must check the law in their jurisdictions to ascertain exactly where the line is drawn regarding the rights of the threatening or violent employee.
Liability for Injury
Workers' compensation statutes have a significant effect upon an employer's liability for violence in the workplace. Legal analysis cannot be made on a national basis because the workers' compensation statutes are state-specific and vary greatly in their thresholds for coverage and exclusions. However, a breakdown of the issues provides some guidance for employers.
Generally, an injured employee who is covered by workers' compensation cannot sue the employer directly because the "exclusivity provision" of the workers' compensation statute identifies workers' compensation as the employee's exclusive remedy for injuries and illnesses that occur within the scope of the individual's employment. For the employee, this system guarantees compensation without regard to negligence. From the employer's standpoint, this system protects the employer from the vagaries of the legal system, including excessive verdicts.
Thus, the first question that an employer must ask is, "Did the injury occur within the scope of the individual's employment?" If it did, as a general matter, the employee is precluded from suing the employer in civil court for negligence, intentional torts or any other applicable cause of action. This sounds simple, but in reality it requires a review of local law. For example, if an employee is injured at work by a co-employee after a dispute over quality of work, is the injury within the scope of the employee's work? What if the confrontation occurred in the parking lot? What if the fight occurred at work, but was started over a personal matter? What if a customer, not a co-worker, assaulted an employee? Or what if a jealous spouse followed the employee to work and assaulted the employee after the supervisor inadvertently directed the spouse to the employee's station?
As a general rule of thumb, in the majority of jurisdictions, if an assault occurs during work and resulted from a work-related dispute, it is covered under workers' compensation. If the dispute occurred at work but resulted from a personal dispute, then the injury is not covered. See Fair v. People's Sav. Bank et al, 207 Conn. 535, 545, 542 A.2d 1118, 1123 (1988) (Boyfriend shot employee; injury was result of personal dispute; workplace did not facilitate result, even though supervisor directed boyfriend to employee). If the assault occurred for a "neutral" reason, i.e. it was not personal, but it also did not evolve from any incident or activity from work, it is usually covered by workers' compensation. See Rodriguez v. The Industrial Commission, 95 Ill. 2d 166, 174, 447 N.E.2d 186, 190 (1983) (Employee assaulted by co-employee solely because of co-employee's ethnic prejudice; "irrational human impulse toward violence . . . is as much of a part of the victim's work environment as a defective tool would be"; injury covered under workers' compensation).
After workers' compensation coverage is established, the employer may still be held liable in a civil suit, if the facts of the violent or threatening incident qualify the case under one of the exemptions to the exclusivity provision. Usually, the statutes exempt injuries when the employer's behavior rises to such a level of outrageousness that it would be unfair to relieve the employer of liability. The exact point at which this line is drawn, however, varies from state to state.
For example, in Purcell v. Pizza Inn Inc., 786 P.2d 716, 717 (Okla. Ct. App. 1990), the court drew a bright line and held that intentional or willful injuries take the employee's claims outside of the exclusive remedy provision of the workers' compensation act because the workers' compensation "statutes were not designed to shield employers or co-employees from willful, intentional or even violent conduct." Id. (employees were permitted to sue for sexual battery and harassment and negligent hiring and supervision).
Other state workers' compensation statutes have drawn the line in a slightly different place. In Burnette v. Godshall, Lockheed Missiles & Space Co., Lockheed Corp., 1994 U.S. Dist. LEXIS 6727, *5-7 (N.D. Cal. 1994), the court held that workers' compensation was the exclusive remedy when an employee assaulted a co-employee during a copier dispute. Although the employee's injury was caused by a willful act, the workers' compensation exemption did not apply because there was no specific intent to injure the employee. Id. at *6.
If an employee successfully argues for an exemption from the exclusivity of workers' compensation coverage, there are several torts recognized as a basis for an employee's damage action against the employer. Although tort law varies from jurisdiction to jurisdiction, employers should know that a number of jurisdictions recognize the torts of negligent hiring, retention and/or supervision of violent employees.
For example, in Yunker v. Honeywell, Inc., 496 N.W.2d 419, 420 (Minn. Ct. App. 1993) an employer was sued for negligent hiring, retention and supervision of an employee who shot and killed a co-employee. The employee worked at Honeywell from 1977 until 1979, then was imprisoned for five years for the strangulation death of another Honeywell employee. Id. at 421.
After his release in 1984, Honeywell re-hired the employee. Several years later, the employee shot and killed the co-employee on her driveway. The court found for Honeywell on the theory of negligent hiring, reasoning that the employer's duty of reasonable care upon hiring was slight because the employee was hired as a maintenance worker with little contact with the public or other employees. Id. at 422-23. Also, the court found for Honeywell on the allegation of negligent supervision because the co-employee was not on the employer's premises and was not using employer property when he killed the employee. Id. at 422.
The court permitted the claim of negligent retention to go to the jury because during the course of employment, Honeywell should have become aware of problems with the employee and taken action. Id. at 424. Specifically, since the employee's re-employment with Honeywell, he sexually harassed female employees, challenged a male employee to a fight, threatened to kill an employee after a minor car accident, and was hostile and abusive to a female worker after problems developed with their friendship. Id.; see also Ziebert International Corp. v. CNA Insurance Co., 78 F.3d 245, 246-47 (6th Cir. 1996) (Insurance duty to defend case; discussing facts of underlying case: employer held liable for $2.1 million in a wrongful death action when a supervisor was killed by an employee whom he fired; jury found that employer ordered the supervisor to fire the employee "with willful disregard of its knowledge that the [employee] was mentally unstable, and . . . that injury was certain or substantially certain to occur").
As these cases illustrate, a state's specific workers' compensation system greatly affects the type and extent of liability which an employer may face if a violent employee injures another employee. Generally, absent an intentional or otherwise willful act by the employer, the exclusivity provisions in the workers' compensation statutes shield the employer from potentially devastating liability. However, if the fact scenario underlying the violent or threatening event qualifies for an exemption from the workers' compensation system, the employer may be held liable for a number of torts.
Given that violence in the workplace presents such a broad array of issues in the legal arena, an employer may never really know the extent of its liability unless and until the violence or threats actually occur (and possibly not until after litigation of the matter). However, with a general knowledge regarding OSHA's intentions, the rights of both the victims and the aggressors, and the law (such as workers' compensation) governing the financial consequences of violent acts in the workplace, an employer may enter the arena as an educated participant and avoid the obvious pitfalls.
STEPHEN C. YOHAY is a partner in the Washington, D.C., office of McDermott, Will & Emery, where he is a member of the firm's OSHA Practice Group. He has extensive experience in occupational safety and health litigation.
MELISSA A. PEPPE is a partner in McDermott, Will & Emery's OSHA Practice Group.…