Workplace violence: prevention and preparedness

The phrase “workplace violence” brings to mind images of angry former employees, armed to the teeth and hell-bent on seeking revenge against those who wronged them.
But employment attorneys and workplace violence experts say that this stereotype is just the most extreme – and rare – example of a growing pattern of threats and harassment in the workplace.
“Fortunately, homicides are a very small percentage of violence, which is what most people think is workplace violence,” said Steve Kaufer, co-founder of the Workplace Violence Research Institute. “But what more and more employees and employers are facing is intimidation and threats that escalate into harassment and something more serious.”
Julian R. Birnbaum, a plaintiffs’ employment lawyer at Vladeck, Waldman, Elias & Engelhard in New York, agreed.
“We see a lot of situations where people have been abused verbally or psychologically, which takes a real toll on an employee in the same way an attack does,” he said.
Domestic abuse is also becoming a more common issue in the workplace as employees increasingly come to their employers with protective orders and seeking assistance, according to Susan Corcoran, a partner at Jackson Lewis in White Plains, N.Y.
“Employers need to be aware of how to handle the situation in a confidential manner,” she said. At the same time, the employer needs to assist the employee by alerting security or creating a safer work environment.
Corcoran also noted that several states, including New Hampshire, have recently passed legislation that allows victims of violence to take time off under the Family and Medical Leave Act (FMLA).
Kaufer said that he has noticed an increase in employer awareness of workplace violence issues, but that more still needs to be done to improve safety.
“Employers need to realize that they don’t have to have a large, elaborate program, but they need to provide some degree of education to their employees so that they know what they should and shouldn’t do,” he said.

Employer prevention
Employers typically have policies against making threats or harassing fellow workers, which is a good start, according to Kaufer.
“But employers must make sure their employees are aware of all of the policies – they really need to promote and talk about the issue,” he said.
Enforcement is essential.
Employers need to institute a system of discipline for violations of the policy, or start enforcing an existing program.
Inaction results in a lose-lose situation for employers, Kaufer said.
“We often see situations where an employee is difficult to deal with and no one wants to discipline that person, so the employer ignores the problem and the behavior escalates,” Kaufer explained. “Then that person either acts out violently, which is a tragedy, or they are terminated, but then they believe they have been fired for what they think is a petty reason because no one has disciplined them over the years. As a result, they file a wrongful termination suit.”
Birnbaum recalled a client who was harassed by co-workers to the point where he needed psychiatric help and had to get an order of protection against one of his fellow employees.
“The employer eventually fired the harassing employee, but it was a really difficult situation,” he said, and could have been avoided if the employer had enforced its policies sooner.

Employer liability
The most fundamental principle is that employers owe a duty to their employees and customers to maintain a safe workplace and take ordinary, reasonable safety precautions, Corcoran said.
“For example, having a direct line to 911 from the front desk, or having exterior doors that are always locked,” she explained. With simple safety precautions, an employer can establish that it wasn’t negligent about its security.
Although there is the potential for employers to still be held liable, it’s an uphill battle for employees. For example, if an employee is injured at work, he or she is covered by worker’s compensation law and can’t sue the employer. There is, however, an exemption in many states if the conduct was intentional.
And, if the injured party is a non-employee who happened to at the worksite – a customer, or a client, for example – then workers’ comp is irrelevant.
Employers can be found liable for negligent retention for not terminating an employee who has violated company policy on workplace violence. Or, if an employer failed to perform a thorough background check on an employee who proves to be a safety threat, an employer could be liable for negligent hiring.
“The most important thing I tell employers is to go back to their worksite and just walk around, observing what goes on,” Corcoran said. “Just by doing that, you are going to see what is safe and what is not safe – if the fire exit door is propped open, for example.”
Corcoran recalled a client whose employee was being stalked by a customer. The employer was able to help protect her by doing relatively simple things – moving the employee’s parking space closer to the building, alerting security to the description of the stalker and making sure that the employee was never out of sight when she walked to and from her car.
“You don’t necessarily want someone walking her to and from the car, because then you are putting two people in danger,” Corcoran explained.