Workplace Violence: Employer Responsibilities and Liabilities
Yohay, Stephen C., Peppe, Melissa L., Occupational Hazards
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. …