In this time of continuing economic uncertainty, and in the wake of horrific public shooting incidents, employers should develop workplace-specific policies and procedures to address, and reduce, the threat of workplace violence. With recent data showing that workplace violence impacts at least 2 million U.S. workers per year and costs U.S. businesses nearly $36 billion dollars annually, workplace violence is an issue that demands employers’ attention.
Employer’s Duty to Prevent Violence
Under federal and state law, employers have a legal duty to prevent workplace violence and related behavior. For example, the federal Occupational Safety and Health Act (OSHA) requires that employers protect employees against recognized workplace safety hazards likely to cause serious injury or death. Similarly, the federal Title VII of the Civil Rights Act of 1964 requires employers protect employees against all forms of workplace harassment, including harassment that creates a hostile or offensive workplace environment. Because sexual, racial and other forms of harassment can often lead to confrontations, employers should take steps to prevent harassment, and to address harassment as soon as they learn of its occurrence. States also have enacted varying laws addressing safety hazards and harassment, including, for example, laws requiring that leave from work be provided to victims of violence. Employers have been found liable for such things as negligently failing to investigate employees before hiring, and failing to adequately warn, discipline and terminate employees that engage in inappropriate conduct. As a corollary to taking proper action pursuant to OSHA, Title VII and other federal and state laws to prevent workplace violence, employers simultaneously must take care not to unlawfully discriminate against employees that fall under various protected categories (e.g., race) through the application of its anti-violence policies. Employers also must be careful not to consider prior arrest records and lawful off-duty conduct if consideration of these factors is prohibited by applicable state law. Moreover, employers should educate themselves regarding any relevant state laws, particularly any gun laws that permit employees to bring guns to work premises. While balancing these competing interests and resolutions may be no easy task, employers nonetheless must make such efforts to ensure they have facilitated a safe workplace.
Recommendations for Employers
Although handling workplace violence is always a daunting task, there are certain basic steps employers can take to minimize the occurrence and impact of such violence.
First, employers should consider conducting background checks that effectively and lawfully identify candidates with histories of violence. Such information, of course, should only be used in accordance with applicable law.
Second, employers should conduct annual assessments of their workplace to determine whether their anti-violence policy is sufficient, and wherever possible, should consider implementing a zero-tolerance policy. Such a policy should clearly define prohibited behavior, regulate weapons in the workplace in accordance with applicable state law, require prompt reporting of policy violations, provide for confidentiality and nonretaliation and impose discipline for policy violations. Employers also should have emergency response policies in place for dealing with violent situations in the workplace, including an appropriately trained response team and coordination with local authorities. Additionally, employers should have a clear policy in place for ensuring the safe termination of employment.
Third, employers should draft and implement additional standards of conduct, discipline, anti-harassment, anti-discrimination and other relevant policies. Such policies are key to addressing underlying conflict and behavior before it results in workplace violence. Employers should also provide training to supervisors and employees on such policies, and make certain that policies are being properly and consistently enforced.
From coworker gripes to disgruntled employees to victims of violence, workplace violence readily can impact all employers and can result in costly litigation, damage to the employer’s brand in the media, and other such negatives—not to mention, of course, the personal harm and conflicts associated with the violence or inappropriate conduct itself. Accordingly, employers would be wise to make workplace safety and anti-violence a top priority in their workplace.
Also read InsideCounsel’s January Labor story, “EEOC warns employers of discrimination related to domestic violence.”