Employer Liability for Workplace Violence
Shumaker, Thomas A., II, Feldstein, Allison L., Public Management
Two employees killed in a California supermarket. Three shot in a Missouri heating-equipment plant. Five dead at a Mississippi aircraft-parts factory. These are tragic examples of workplace violence at its extreme. And they represent only a small fraction of instances of violence in the workplace.
While fatalities garner the greatest media attention, the 2 million nonfatal workplace violence incidents reported annually in the form of assaults, robberies, thefts, hostage taking, hijackings, rapes, and sexual attacks represent a larger problem for employers.
The risk of workplace violence raises several concerns for employers, including the potential for liability, and workplace violence lawsuits have resulted in millions of dollars in settlements and judgments. Beyond monetary costs, employers must contend with lower employee morale and negative publicity. To maintain a safe workplace and minimize liability, employers must take steps to prevent workplace violence and respond appropriately to it when it occurs.
Many employers assume that workers' compensation laws protect them from lawsuits for all workplace assaults. Under many circumstances, workers' compensation insurance will cover an employee's injuries sustained during employment. Workers' compensation statutes, however, generally exclude intentional acts. In Pennsylvania and many other states, whether workers' compensation laws apply to injuries intentionally caused to an employee by a third party depends on the facts of the case.
An employee assaulted in the workplace may try to recover damages from the employer on these two grounds:
Vicarious liability. An employer may be liable for violence committed by an employee as part of his or her job duties, as when a security guard uses excessive force. Most courts, however, have refused to hold employers vicariously liable for the violent acts of employees who injure others because employers usually do not authorize employees to act violently.
Negligence. An employee may claim that the employer was negligent in hiring, supervising, or retaining the assailant, that is, that the employer knew or should have known that the individual was unfit but hired and kept the person on the job anyway.
Employers can reduce the risk of violence in the workplace and minimize their liability, should violence occur, by taking such measures as verifying application information, doing thorough background checks, and having more than one person present during an evaluation or termination meeting.
The important thing is to ask questions about prior violent behavior. Even if an employer does not obtain usable information from references or if the applicant lies, the fact that the employer asked the questions helps protect it against liability.
States differ in whether they allow employers to consider conviction records in hiring decisions. In Pennsylvania, for example, an employer may ask an applicant about his or her criminal record and may deny employment to a convicted felon if the conviction is related to the job duties. It does not permit employers to ask about misdemeanor or summary offense convictions or to reject an applicant because of an arrest record or a prior conviction that was pardoned, unless the conviction is related to the job duties.
Employers should consider other actions specifically aimed at preventing and responding to workplace violence: to train supervisors to spot a potentially violent employee; to improve physical security; and to develop, communicate, and enforce a workplace violence policy. …