New England Biz Law Update
Despite many tragic and well-publicized incidents, and the knowledge that no employer is immune from the scourge of workplace violence, most employers have not yet enacted the basic buildings blocks of a workplace violence prevention program.
This article summarizes the legal and practical implications of workplace violence and suggests an approach to establishing a prevention program.
Potential Employer Liability
Although the Workers’ Compensation Act generally provides the exclusive remedy for workplace injuries affecting employees – even for acts of violence – there are situations that fall outside the purview of the Act.
A decision by the Massachusetts Superior Court in Robert F. Brun, Administrator of the Estate of Sandra Berfield v. Steven Caruso, 18 Mass. L. Rep 469 (2004), illustrates an employer’s exposure for failing to protect an employee.
Brun involved a restaurant patron’s murder of a waitress. The patron frequented the restaurant and was also hired regularly by the restaurant as a “handyman.”
Beginning in 1997, he turned his attention toward a waitress, demanding to be seated in her section and staring menacingly at her. When she complained, the restaurant barred the patron from sitting in the waitress’ service area, but he continued to visit the restaurant and stare angrily and continuously at the waitress.
When the patron learned that the waitress was seeking a restraining order, he slashed the tires of her car outside her home. When the waitress obtained a restraining order, the patron violated the order and continued to stalk her until January 2000 when he left a fatal package bomb at her house.
The waitress’s estate sued the restaurant for negligence. The trial court judge denied the restaurant’s motion for summary judgment, saying there could be a legal duty to protect the waitress from a third party’s criminal conduct.
The judge wrote: “As a general rule, there is no duty to protect another from the criminal acts of a third party. A duty may arise, however, where there is a ‘special relationship’ between the defendant and the injured victim. A special relationship is based on the plaintiff’s reasonable expectations and reliance that a defendant will anticipate harmful acts of a third person and take appropriate measures to protect the plaintiff from harm.’ Accordingly, an employer may have a legal obligation to protect its employees from workplace threats and troubles.
“[Here, the restaurant] owed a duty to its employees to provide a safe place to work, which included a duty to take reasonable precautions against exposing them to potentially dangerous individuals. The plaintiff could argue that [the restaurant’s] failure to act tacitly encouraged and empowered the patron to develop his obsessive attachment to [the waitress] which led inexorably to her murder in January 2000.”
A recent analysis of the cost of workplace homicide found that, on average, more than 15 workplace murders occur each week and that the economic cost to society of a workplace homicide averages approximately $800,000. In addition to the legal implications and the monetary cost of such a tragedy, the harm to morale and productivity of unchecked threats of violence cannot be overestimated.
Workplace Violence Prevention Programs
The very intimacy of the workplace, where an employer will often have an opportunity to observe danger signs, gives a well-structured violence prevention program a real chance of avoiding costly tragedies.
The elements of a successful workplace violence prevention program should include:
While a detailed description of a violence prevention program is beyond the scope of this article, a few aspects of successful programs warrant further comment.
Planning for and responding to workplace violence requires a range of perspectives and expertise. Thus, a workplace violence prevention response team should include internal resources based on an inter-disciplinary approach, often including representatives from legal, HR, management and EAP.
The threat assessment and incident response team should assess and respond to every report of violence, or threat of violence. The element of responsiveness is key – all reports must be taken seriously. However, while every reported threat is to be assessed thoroughly, the employer’s response should be calibrated to the degree of seriousness of the conduct. Not all reports of threatening conduct will warrant severe disciplinary action or law enforcement involvement.
Finally, well before any incident occurs, an employer should consult and establish relationships with local law enforcement officials, threat assessment consultants, mental health professionals, other first responders and outside experts that the employer may need to call upon in a crisis.
Richard D. Glovsky and Daniel S. Tarlow are members of the employment law group at Prince, Lobel, Glovsky & Tye in Boston, counseling employers of all sizes, from large multinational corporations and public employers to small, closely held businesses. Members of the group conduct a broad range of employment trainings for their clients. For more information on the topic in this article and other trainings offered by the employment law group visit www.plgt.com.
