Preventing Workplace Violence in the U.S.: Critical Legal ...€¦ · 30/4/2013 · •Carrying...

transcript

Preventing Workplace Violence in the U.S.:

Critical Legal, Behavioral, and Operational

Considerations for Employers

April 30, 2013

Presenters

Moderator

Glen E. Kraemer, Partner, Hirschfeld

Kraemer LLP, Santa Monica, CA

gkraemer@HKemploymentlaw.com

Speakers

John Lane, Vice President, Crisis &

Resilience Consulting , Control Risks

North America, Los Angeles, CA

john.lane@controlrisks.com

Jeffrey J. Nolan, Partner, Dinse, Knapp &

McAndrew, P.C. and Senior Consultant,

Sigma Threat Management Associates, P.A.,

Burlington, VT

jnolan@dinse.com

Speakers

Henry M. Perlowski, Partner, Arnall Golden

Gregory LLP, Atlanta, GA

henry.perlowski@agg.com

New U.S. National Standard

• ASIS/SHRM WVPI.1-2011:

“Workplace Violence Prevention and

Intervention”

− Approved September 2, 2011

− Designed to mitigate risk to employer

− Does not create new legal

obligations...

− Confirms a proactive approach of

prevention and intervention

No New Legal Obligations…?

Sobering Reality

• Negligence concepts and the new

ASIS/SHRM standard:

− The “reasonable employer” argument

− Standards likely to become the new

plaintiff’s touchstone

Prevention Team

• Concept

– Proactive vs. reactive

• Purpose

– Develop, implement and monitor the

Workplace Violence Prevention Plan

– Provide a planned and strategic

approach for effectively addressing

workplace violence

Prevention Team

• Members

– Human resources

– Security

– In-house legal

– Employment law specialist

– Threat assessment specialist

– Employee assistance program

– Other ad-hoc members

Prevention Team Responsibilities

• Program development and

management

• Violence vulnerability audit

• Policies and procedures

• Communications

• Participate in threat assessment

process

Prevention Team Responsibilities

• Responds to workplace violence

threats/incidents

• Coordinate training plan

• Trauma response

• Act as resource specialist

Best/Promising Practices

• Multi-disciplinary team in the workplace

• Authority to engage in threat assessment

• Basic threat assessment training

• Standard threat assessment processes

and procedures

• Access to case management resources

• Active case monitoring

• Other resources that support threat

assessment operations 11

Supporting Resources

• Administration (and administrative)

support

• Advanced threat assessment training

and tabletop exercises

• Database and other documentation

• Strategies to promote awareness and

encourage reporting

• Reporting mechanisms

• Community relationships

Team Policies and Procedures

• Employers should work with counsel

− Draft appropriate general workplace

violence prevention policies

− Draft threat assessment and

management team mission

statements and policies to describe

team fairly without over-promising

Team Policies and Procedures

• (Cont’d)

− Draft team procedures to optimally

outline process and team activities

and authority, without restricting

team’s need for flexibility in

particular cases

Team’s Functional Authority

• Team should have authority to do

the following on behalf of the

employer:

− Identify persons / situations of

concern

− Gather additional information

− Assess whether person / situation

poses a threat

Team’s Functional Authority

• (Cont’d)

− Develop and implement strategies to

reduce threat risk

− Monitor and re-evaluate threat

• Consider integration with disciplinary

processes

Encourage Reporting

• For effective reporting, people need

to know:

– Their role and responsibility to report

– What and where to report

– Reports are wanted

– Something will be done

– Regular reminders of issues and

process

Where to Report?

Threat

Assessment

Team Employee Assistance

Program

Website / Social Media

Managers & Supervisors

Police &

Security

Community

Co-workers

Related agencies /

groups

Risk Assessment “Filtering” Tests

• Troubled v. troubling

• Fearful, frustrated, predatory

(bullying)

• Depression, cognition, behaviors,

environment

• Levels of violence

Troubled v. Troubling

• Troubled – internalized stressors

and resulting low-level behaviors,

often showing up in performance

• Troubling – escalated, externalized

behaviors disrupting the workplace

Fearful, Frustrated, Predatory

• Levels of control

− Fearful – afraid of you taking control

from them

− Frustrated – out of control

− Predatory – wants to take control

from you

Workplace Violence Red Flags –

Depression

Depressed Mood Anergia

Anhedonia Worthlessness

Weight Changes Decreased concentration

Insomnia Recurrent thoughts of death

Psychomotor

Agitation/Retardation

Hopelessness

Self-esteem impacted

Cognitions

Obsession with weapons Holds a grudge

Obsessive involvement with

Interest in recently

publicized violent events

Unwanted romantic interest

in co-worker

Un-accepting of criticism

Low frustration intolerance Perceived unjust treatment

Paranoid

Behavior

History of violent behavior Loner

Direct or veiled threats Any extreme changes in

behavior

Carrying concealed weapon Intimidation

Low frustration intolerance

Tests limits of accepted

behavior

Level One Violence

• Refuses to cooperate with

immediate supervisor

• Spreads rumors and gossip to harm

others

• Consistently argues with co-workers

• Is belligerent toward others

Level One Violence (cont’d)

• Uses excessive profanity, primarily

of a sexual nature

• Makes unwanted sexual comments

• Expresses suicidal thoughts

• Inappropriate reasoning, impaired

judgment

Level Two Violence

• Argues increasingly with customers,

co-workers, vendors and

management

• Refuses to obey company policies

and procedures

• Sabotages equipment and steals

property for revenge

Level Two Violence (cont’d)

• Verbalizes wishes to hurt co-workers

and/or management

• Persistent non-mutual displays of

affection

• Sees self as victimized by

management

• Makes suicidal threats/gestures

Level Three Violence

• Physical fights

• Destruction of property

• Utilization of weapons to harm

others

• Attempts/commits suicide

• Murder, rape, arson

Environmental “Catalyst”

(Risk Factors)

• Toxic Supervisor

• Recent family, financial, and/or personal

problems

• Stress in workplace such as layoffs,

downsizing

• Substance abuse

• Neurological signs/head trauma

Warning Signs + Risk Factors =

Escalation of Threat 30

Domestic Violence Defined

• Domestic violence: The use of

physical, sexual, or emotional abuse

or threats to control another person

who is a current or former husband,

wife, or other intimate partner, such

as boyfriend or girlfriend.

A National Tragedy

• Victims and perpetrators

− 1 out of 3 women report physical

abuse by an intimate partner

− Majority of adult domestic victims are

− Most perpetrators are men

A National Tragedy

• Alarming Statistics

– Over 1400 women are murdered every

year by intimate partner

o Nearly 1/3 of women killed at work were killed by a current or former intimate partner

– 1,000,000 women per year are victims

of non-lethal domestic violence, such

as physical and sexual assaults

A National Tragedy

• Presidential memorandum requires all

federal agencies to develop and

implement workplace policies

addressing domestic violence

– February 2013: Federal Office of

Personnel Management issued

“Guidance for Agency-Specific

Domestic Violence, Sexual Assault and

Stalking Policies”

Domestic Violence: Impact

• Corporate Alliance to End Partner

Violence, 2005 Survey

– 21% of the full-time employed adults

polled identified themselves as

victims

– 64% percent of them indicated their

ability to work was significantly

impacted

Domestic Violence: Impact

– Impact on co-workers

o 31% felt obliged to cover for co-

worker who is a victim

o 38% were concerned for their own

safety

o 27% had to do the victim’s work

o 25% resented a co-worker due to the

situation

Domestic Violence: Risk Factors

• Recent break-up

• Prior physical violence

• Threats to harm

• Substance abuse

• Unemployed

Domestic Violence: Response

Strategies

• Role of the employer

– Respond to a DV issue appropriately

within the context of the broad

responsibility to maintain a safe and

productive work environment and within

organizational guidelines.

– Refer employee victims to qualified

professionals.

Strategies

• DV case in which there is no

immediate workplace risk

– Document

– Provide work schedule adjustments

as appropriate or required by law

– Refer to qualified professionals

Strategies

• Threat/risk to workplace

– Document facts and report to WPV

Prevention Team

– Determine appropriate work status

for victim employee. If employee is

to remain on current work status,

develop security protocol to assist

with his/her personal safety.

Strategies

• (Cont’d)

– Provide referral to appropriate

professionals

– Determine if employer is the victim of

a crime

Strategies

• Determine if additional workplace security

is necessary

• Maintain confidentiality of case; determine

if others might be at risk and inform as

appropriate

• Consider corporate restraining order

• Maintain on-going contact with victim

employee and monitor his/her response

actions 42

WE HAVE HEARD A PHRASE IN

THE NEWS FREQUENTLY SINCE

NEWTOWN …

“The best way to stop a bad guy with a

gun is a good guy with a gun.”

WE HAVE HEARD A PHRASE IN

THE NEWS FREQUENTLY SINCE

NEWTOWN …

“The best way to stop a bad guy with a

gun is a good guy with a gun.”

At least 20 states have laws

that agree with this principle

“Guns in the Trunks” Laws

• Carrying concealed weapons is legal

virtually everywhere

• There has been a proliferation of

“Guns in the Trunk” laws since 2004

• Significant legislative initiative of the

National Rifle Association

• Goal is to allow employees to bring

guns to the workplace as long as they

are concealed in employee vehicles

• Significant legislative initiative of the

National Rifle Association (cont’d)

• Stated theory is to permit employees to

protect themselves during long

commutes and even at the workplace

• Vehicle as “personal property”

• Therefore, guns are in parking lots,

which may be employer property

• States with “guns in the truck” laws

include: Alaska, Arizona, Florida,

Georgia (sort of), Idaho, Indiana,

Kansas, Kentucky, Louisiana, Maine,

Minnesota, Mississippi, Montana,

North Dakota, Oklahoma, Utah,

Tennessee (sort of), Texas,

Wisconsin, Wyoming

• Some states also have “public

sector” rules – can carry concealed

weapons on, e.g., college

campuses, including at disciplinary

hearings

• These laws typically have carve outs

for specific kinds of workplaces

• Some laws (Indiana is a model) provide

for private rights of action if employers

enforce policies contrary to the laws,

including the recovery of attorneys’ fees

and punitive damages

• Opposition groups (led by Chambers of

Commerce, large employers) have

started to oppose and/or chip away at

these laws based on the property rights

of employers to regulate their “property” 49

• In Tennessee and Georgia, laws are

limited because employers can prohibit

the presence of guns if they “own,

lease, or otherwise legally control” the

property, e.g., the parking lot

• Proposed “guns at work” laws have

started to fail, including in the Deep

South (Alabama, South Carolina)

• NRA is fighting back by downgrading

legislators and supporting primary

challenges

“Guns in the Trunks” Laws –

Employer Liability?

• OSHA challenges to these laws

have failed

• Some laws (Texas) provide that

employers cannot be liable for

resulting injury absent “gross

negligence”

• Still places an increased need to monitor

where these laws are present because

employers know guns are at their

doorsteps:

− Ask for proof of authorization to carry

− Be vigilant about where guns can and

cannot be allowed

− Quicker to terminate? The violent or drunk

employee scenario …

− Use background checks and screens more

vigilantly … speaking of which …

Employers Use of Criminal

Background Checks

• 92% of employers report using criminal

background checks for candidates or

existing employees

• Several laws directly regulate the use

of criminal background checks in the

workplace:

– Fair Credit Reporting Act

– State consumer protection laws 54

Employers Use of Criminal

Background Checks

• BUT increasing scrutiny under federal

(and state) anti-discrimination laws

EEOC Guidance

• Guidance from the EEOC –

“Consideration of Arrest and Conviction

Records in Employment Decisions Under

Title VII of the Civil Rights Act of 1964”

(No. 915.002) – approved April 25, 2012

• Purpose was “to consolidate and update”

the EEOC guidance documents

regarding the use of arrest or conviction

records in employment decisions under

Title VII of the Civil Rights Act of 1964

EEOC Guidance

• Guidance reflects a presumption that

disparate impact exists and

presumption shifts to employers to

justify reliance on certain kinds of

criminal checks

Why Should Employers Care?

• The EEOC is finalizing its 2012-2016

Strategic Enforcement Plan (SEP),

which will guide its enforcement

priorities/actions

• #1 issue identified in the plan as a

nationwide priority is class-based

intentional hiring discrimination and

facially neutral hiring practices that

adversely impact particular groups 58

Why Should Employers Care?

• That means $$ are targeted to promote

those initiatives

• Use of “background screens” has been

identified as a potentially

exclusionary tool that could adversely

impact groups protected under the law

Highlights of the Guidance

• Differences between arrest and

conviction records

• Disparate impact analysis under Title

• The “job related and consistent with

business necessity” standard

• Validation studies, targeted screens

and individualized assessments 60

Use of Arrest vs. Conviction Records

• EEOC continues to disfavor the use of

arrest records for employment

purposes because an arrest, on its

own, does not establish that criminal

conduct has actually occurred

• Guidance does not prohibit the use of

arrest records, but explains that “the

conduct, not the arrest, is relevant for

employment purposes” 61

Use of Arrest vs. Conviction Records

• According to the EEOC, an exclusion

based on an arrest, in and of itself, is not

job related and consistent with business

necessity

• EEOC: a conviction record will usually

serve as sufficient evidence that a person

engaged in the particular conduct at issue

• Thus, it’s difficult/impossible to have

blanket “need not apply” language in

advertisements and postings 62

Disparate Impact Analysis

• The applicable framework

− Plaintiff demonstrates that the employer’s

neutral policy or practice has the effect of

disproportionately screening out a

protected group and the employer fails to

demonstrate that the policy or practice is

job related for the position in question and

consistent with business necessity

(“JRBN”)

Disparate Impact Analysis

• (Cont’d)

− Think arrest records and race and/or

national origin

− If an employer successfully demonstrates

that its policy or practice is JRBN, the

plaintiff may still prevail by demonstrating

there is a less discriminatory “alternative

employment practice” that serves the

employer’s goals as effectively as the

challenged criminal record exclusion

Job Relatedness/Business Necessity

• The Eighth Circuit Court of Appeals,

in Green v. Missouri Pacific Railroad,

identified three factors (the Green

factors) that are relevant when

assessing whether an exclusion is

job related to the position in question

and consistent with business

necessity:

Job Relatedness/Business Necessity

– The nature and gravity of the offense

or conduct

– The time that has passed since the

offense or conduct and/or

completion of the sentence

– The nature of the job held or sought

Targeted Screen

• Guts of your decision matrix or decision

making should focus on the Green

factors:

– Nature and gravity of the offense or

conduct;

– Time elapsed since the offense,

conduct and/or completion of sentence;

– Nature of the job held or sought.

Targeted Screen

• Red flags:

– Blanket prohibitions whether in a

matrix or not

– Automatic “Fails” or “Reds”

disqualifying an applicant unless

some kind of exception applies (e.g.,

an exception authorized by federal

Individualized Assessment

Employer actions:

• Inform the individual that he/she may be

excluded because of past criminal conduct;

• Provide an opportunity to the individual to

demonstrate that the exclusion does not

properly apply to him/her;

• Consider whether the individual’s additional

information shows that the policy as applied is

not job related and consistent with business

necessity

What should an employer consider?

• Employee may provide information that

he/she was not correctly identified in the

report or that the report is inaccurate

• If above is not applicable. consider the

following with an eye on whether your

exclusion policy, as applied, is not JRBN:

− The facts or circumstances surrounding the

offense or conduct

− The number of offenses for which the

individual was convicted

− Older age at the time of conviction, or

release from prison

• Evidence that the individual performed the

same type of work, post conviction, with

the same or a different employer, with no

known incidents

• Length and consistency of employment

history before and after the offense or

conduct

• Rehabilitation efforts

• Employment or character references and

any other information regarding fitness for

the particular position

• Whether the individual is bonded under a

federal, state, or local bonding program 72

“Ban the Box” Initiatives

• Public interest initiative to ban use of

criminal history as automatic exclusions at

the application stage

• NOT a complete ban – just defer the

inquiry until later in the interview process

• The law in Massachusetts and in select

cities and municipalities

• Precludes national uniformity for the multi-

jurisdictional employer

Code of Newark, NJ Ordinance

• November 18, 2012 – ordinance went into

effect limiting employers’ use of criminal

history when making employment

decisions. Ordinance impacts job

advertisements too.

• Will apply to “any person, company,

corporation, firm, labor organization, or

association which has five or more

employees and does business, employs

Code of Newark, NJ Ordinance

persons, or takes applications for

employment within the City of Newark,

including the City of Newark and any City

department, agency, board, or commission,

or any employee or agent thereof.” Covers

paid and non-paid work as well as

vocational and educational training.

• Difference between what information credit

reporting agencies can report and what

information employers permissibly may use

ADAA – Potentially Applicable Laws

• What disability-related laws may

apply?:

− Federal Americans with Disabilities Act

and Section 504 of Rehabilitation Act

− State public accommodations laws /

disability-related employment laws

Definition of Disability

• An employee is protected if he or she

has a “disability,” defined as follows:

− A physical or mental impairment that

substantially limits one or more major life

activities

− Conditions affecting the operation of

necessary bodily functions

− Includes: mental health conditions that

substantially limit one’s ability to learn,

concentrate, think and communicate

Other Covered Individuals

• Disability laws also generally prohibit

discrimination against an individual

– Has a “record” of having a disability

(such as a past diagnosis of mental

illness which is in remission at the

time of assessment) . . . or

– Is “regarded as” having a disability

Key ADA Concepts

• Key ADA concepts relevant to workplace

violence prevention/threat assessment:

− “Essential functions” of job

− Reasonable accommodations” requirement

− “Interactive dialogue” requirement

− Medical inquiries and “fitness for duty”

testing vs. assessment of

dangerousness/threat assessment

investigations

Otherwise Qualified/Direct Threat

• Individuals who cannot control

misconduct caused by a disability

may not be “otherwise qualified”

• Employers do not have to

accommodate an employee who

poses a “direct threat” to self or

others, considering:

Otherwise Qualified/Direct Threat

• (Cont’d)

− Nature, duration and severity of risk

− The probability that potentially

threatening injury actually will occur

− Whether reasonable modifications of

policies, practices or procedures will

sufficiently mitigate the risk.

Case Law and Practical Application

• Federal courts are divided as to whether

employers have to engage in

“accommodation dialogue” about

misconduct, or may instead simply sanction

misconduct without addressing disability

• Example “not otherwise qualified” and

“direct threat” cases

• Practical application of case/statutory law to

workplace violence prevention and threat

assessment efforts

ADA Legal Considerations for Threat

Management Teams

• The Gambini v. Total Renal Care

dilemma, and application to

management of threatening behavior

• California Gets it Right: Wills v.

The Superior Court of Orange

County (April 2011, Cal. Ct of

Appeal)

ADA Legal Considerations for Threat

Management Teams

− Linda Wills threatened to put co-workers

on her “Kill Bill” list

− Sent cell phone ring tones and emails

containing threats to co-workers

− During investigation, asserted that her

conduct was the result of a mental

disability (bi-polar disorder)

− After termination, sued alleging her

conduct was result of disability

Wills Informs Terminations Based on

Disability-Induced Workplace

Violence

• Wills Court held:

“We interpret FEHA as authorizing an

employer to distinguish between

disability-caused misconduct and the

disability itself in the narrow context of

threats or violence against coworkers….”

Wills Informs Terminations Based on

Disability-Induced Workplace

Violence

Held: When an employee engages in threats

or violence, an employer is entitled to take

action, even if the employee’s conduct is

caused by a disability.

Wills limited to disability-induced threats and

violence, not other forms of misconduct

Applicable to California, but reasoning helpful

for all WVPTs

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Preventing Workplace Violence in the U.S.: Critical Legal ...€¦ · 30/4/2013 · •Carrying...

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