Academic journal article Defense Counsel Journal

Workplace Violence: The Universe of Legal Issues

Academic journal article Defense Counsel Journal

Workplace Violence: The Universe of Legal Issues

Article excerpt

Employers face an array of issues and theories when trying to prevent violence in their workplaces, and they need competent counsel

INTRODUCTION

VIOLENCE in the workplace" has become a hot topic for the defense community. Although a recent U.S. Supreme Court decision has declared the federal Violence Against Women Act unconstitutional,' employers still face a significant risk of liability for unpredictable acts of workplace violence. Why so? Violent incidents at places of employment are nothing new, nor do they seem to be increasing.' However, occasional spectacular events receive widespread publicity. Claims are increasing because of news media attention to these incidents. Changes in the United States legal system are another explanation for this increase.

Not long ago, even the most serious incident would result in no more than a workers' compensation claim by the injured employee and a criminal prosecution against the perpetrator. Other efforts to subject the employer to liability ran afoul of restrictive common law agency rules governing vicarious liability for intentional acts committed by employees.3 Ordinarily the rule of Section 219 of the Restatement (Second) of Agency was followed, and liability attached only if the employee was acting "within the scope" of employment.

Employees who perpetrate serious violent acts rarely are acting on behalf of their employers. In the picturesque language of older case law, they are "off on a frolic of their own." A few exceptions were applied, mostly to common carriers, where the violent act could be characterized as a breach of contract, as, for instance, in a 1905 Massachusetts case in which a street railway passenger was able to recover for injuries received when a dead chicken was hurled at a trolley car by a railway employee.4

However, courts have been moving away from "scope of the employment" as the touchstone for employer responsibility for employee intentional wrongdoing. Traditional agency concepts are now being interpreted much more liberally. One current trend, reflected most notably in two recent U.S. Supreme Court cases, is toward imposing liability when an employee was "aided in accomplishing the tort by the existence of the agency relation."4 This analysis may apply to unauthorized acts performed for purely personal gratification, whenever the agency relationship made it easier for an employee to commit an intention tort. Other cases find ratification of misconduct where an employer fails to stop it.5

The current trend is toward imposing a greater duty on employers to provide safety in the workplace by protecting employees and others against violent acts. Defense counsel who represent employers must consider possibilities such as a premises liability claim by a third party, a citation based on the Occupational Health and Safety Act, an employment discrimination claim, or even a criminal prosecution against the employer. Lawyers who are employers themselves should realize that their firms could be adversely impacted by litigation arising from incidents in their own offices. Few have done so.

DEFINITION

Defining "workplace violence" has generated considerable discussion. Some would include in the definition any language or actions that make one person uncomfortable in the workplace. Others would include threats and harassment. All would include any bodily injury inflicted by one person on another. Thus, the spectrum of workplace violence ranges from offensive language to homicide, and a reasonable working definition is: violent acts, including physical assaults and threats of assault, directed toward persons at work or on duty.6

State and federal agencies concerned with workplace violence often categorize incidents into three types:

Type I: Offenses by strangers;

Type II: Offenses by customers, clients or consumers of the services offered by the employer; and

Type III: Offenses by current or former employees and their acquaintances. …

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