1 Victor O. Cardwell, Esq. Woods Rogers PLC 10 S. Jefferson Street Wachovia Tower, Suite 1400 Roanoke, Virginia 540.983.7600 540.983.7711 (Facsimile) www.woodsrogers.com Violence in the Workplace: Legal Issues in Protecting Employees A joint Woods Rogers - HCR seminar PRESENTERS: Stephen A. Burt, President Woods Rogers Consulting 10 S. Jefferson Street Wachovia Tower, Suite 1400 Roanoke, Virginia 540.983.7750 540.529.2258 (Mobile) www.wrc-hcr.com Teamwork ……………..
Transcript
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Victor O. Cardwell, Esq.Woods Rogers PLC
10 S. Jefferson StreetWachovia Tower, Suite 1400
Roanoke, Virginia540.983.7600
540.983.7711 (Facsimile)www.woodsrogers.com
Violence in the Workplace: Legal Issues in Protecting Employees
A joint Woods Rogers - HCR seminar
PRESENTERS:
Stephen A. Burt, PresidentWoods Rogers Consulting10 S. Jefferson StreetWachovia Tower, Suite 1400Roanoke, Virginia540.983.7750540.529.2258 (Mobile)www.wrc-hcr.com
Teamwork ……………..
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BOTTOMLINEEmployer’s Duty to Prevent Violence
•Under federal and state law, employers have a legal duty to prevent workplace violence and related behavior.
•OSHA requires that employers protect employees against recognized workplace safety hazards likely to cause serious injury or death.
BOTTOMLINE
Employer’s Duty to Prevent Violence
Title VII of the Civil Rights Act of 1964 requires employers to protect
employees against all forms of workplace harassment, including
harassment that creates a hostile or offensive workplace environment.
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SO, HOW ARE EMPLOYER’S DOING?
2011 Was Not a Good Year
• Violence and other injuries by persons accounted for 780 fatalities, or about 17 percent of the fatal injuries in the workplace in 2011. Included in this count are 458 homicides and 242 suicides.
• The 780 workers were killed as a result of violence and other injuries by persons, including 458 homicides and 242 suicides. Shootings were the most frequent manner of death in both homicides (78 percent) and suicides (45 percent).
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STATISTICS ARE STAGGERING
According to data from the Bureau of Labor Statistics in 2011, violence and other injuries caused by persons contributed to 17% of all occupational fatalities, with homicides contributing to 10% of the total.
STATISTICS ARE STAGGERING
• The Bureau of Labor Statistics’ (BLS) Census of Fatal Occupational Injuries shows an average of 590 homicides a year from 2000 through 2009, with homicides remaining one of the four most frequent work-related fatal injuries.
• Workplace homicides remained the number one cause of workplace death for women in 2009.
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What About 2012?
• According to ongoing research on threat and crisis management, homicides in the workplace have increased by 50 percent in 2012 alone, a phenomenon described as “stunning.”
• Up until 2011, there were an average of two people killed at work every workday, averaging about 10 a week.
Dr. Larry Barton, president of The American College in Bryn Mawr, Pennsylvania
STATISTICS ARE STAGGERING
• A report issued by OSHA after an extensive study, showed that “homicide is the second leading cause of fatal occupational injury in the United States.”
• The report stated that almost 1,000 workers are murdered, and 1.5 million – about 1-in-4 –employees are assaulted in the workplace each year.
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STATISTICS ARE STAGGERINGRate of Workplace Violence
• Each year, approximately 2 million people are attacked or threatened in the workplace
• Law enforcement officers were the most common victims (19% of all workplace victimizations), followed by persons in the retail industry (13%) and those working in the medical field (10%).
U.S. Department of Justice, Bureau of Justice Statistics
So Employers are Responding!Wrong!
Over half of US employers have no program or policy addressing workplace violence, and among those who have a policy, less than half address domestic violence!
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Domestic Violence – The Stats
• If a company employs five women, at least one of them has probably suffered violence at the hands of a spouse or boyfriend.
• Every day, three women in this nation are murdered by a current or former intimate partner.
• One-fourth of all domestic violence victims said abuse has caused them to arrive late to work or miss work, and more than half of employed battered women have been harassed by their partner while at work.
• Over 25,000 acts of rape or sexual assault occur against women at work each year.
• The leading cause of death on the job for women continues to be homicide.
So Where Are We?
OSHA has a policy!
Compliance Directive, CPL 02-01-052, titled “Enforcement Procedures for
Investigating or Inspecting Incidents of Workplace Violence”
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Violence in the Workplace: OSHA’s New Compliance Directive
OSHA Issues New Rules On Investigating Workplace Violence
• OSHA issued on September 8, 2011 a Compliance Directive, CPL 02-01-052, titled “Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence”.
• Employers can be held liable for workplace violence when it can be shown there was negligent hiring, negligent retention, negligent security, and/or inadequate safeguards to provide a “safe and healthful workplace”.
Executive Summary •This Compliance Directive:
– Establishes OSHA general enforcement polices and procedures for CSHOs to apply when conducting inspections related to workplace violence.
– Highlights the steps that should be taken in reviewing incidents of workplace violence
– Is meant to provide guidance on both how an OSHA workplace violence case is developed and how Area Offices can assist employers in addressing the issue of workplace violence.
September 8, 2011 CPL 02-01-05“Enforcement Procedures for Investigating or Inspecting
Incidents of Workplace Violence”.
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Violence in the Workplace: Are You Safe?
Workplace Violence Defined: “violent acts (including physical assaults and threats of assaults) directed towards persons at work or on duty.”
OSHA believes that one of the most fundamental responsibilities of Management is to provide employees a safe place to work.
Categorizing Workplace Violence
Type 1 - Criminal Intent Or Stranger Violence: Perpetrator has no legitimate business relationship to the workplace or its employees and is typically committing a crime in conjunction with violence.
Examples include robbery, shoplifting, trespassing and terrorism.
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Roanoke Times: January 24, 2011
Monday, January 24, 2011
Walmart Shooting Leaves 2 Dead, 2 Deputies Hurt
PORT ORCHARD, Wash. -- A shootout in front of a Walmartleft two people dead and two sheriff's deputies wounded Sunday afternoon, a sheriff's spokesman said.
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Categorizing Workplace Violence
Type 2 – Customer/Clients: Perpetrator has a legitimate business relationship with the business or its employees and becomes violent while being served by the business or its employees.
This includes violence by customers, clients, patients, students, inmates, etc.
UROLOGIST SHOT DEAD IN EXAM ROOM; MAN IN CUSTODYJanuary 29, 2013
Associated Press - A 75-year-old barber was jailed Tuesday in an investigation of the killing a urologist in his exam room, but police have not yet released a motive. Stanwood Fred Elkus of Lake Elsinore, Calif., was arrested following the Monday afternoon attack and held on $1 million bail, according to the county jail website.
Police said they found Elkus and Gilbert in a second-floor room after several 911 callers reported six or seven shots fired. A gun was found at the scene. The doctor had been shot several times in the upper body and was declared dead at the scene in Newport Beach.
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Man Accused Of Beating Salesman During Meeting
November 21, 2011
TOMBALL, TX (KTRK) -- The family of a Tomball man is outraged over what happened to him while on the job. He was beaten while out on a call, and the family calls it a hate crime because he is Pakistani.
On Wednesday, Bham, an ADT security system salesman, was meeting the homeowner in this upscale subdivision for an appointment. Investigators say soon after he arrived, David Nienberg began asking questions and then jumped on Bham.
Besides a severed ear, Bham has 10 broken ribs and a hurt shoulder. His wife believes Bham's ethnicity was a factor in the attack, and therefore, this is a hate crime.
Health Care Worker Attacked at PSL Hospital
Where 2001 Killing Rampage Took Place
AP — A St. Lucie County psychiatric hospital where a 2001 killing rampage left a nurse and three patients dead had an incident Thursday where another patient attacked a health care worker.
• St. Lucie County sheriff’s deputies charged a patient at the Port St. Lucie Hospital, the former Savannas Hospital on Southeast Walton Road, with felony battery on a health care worker after assaulting a nurse.
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Man Charged With Capital Murder In Shooting At Roanoke Convenience Store
The Roanoke Times (Roanoke, VA) March 4, 2008
A grand jury has indicted Calvin Bond Watson on a capital murder charge in the slaying Thursday of a convenience store clerk on Williamson Road.
The grand jury also indicted Watson, 51, on charges of attempted robbery, possession of a firearm as a convicted felon and two counts of using a firearm in a felony in the events that led to the death of 52-year-old Jayeshkumar Brahmbhatt.
FOLLOW-UP: A man who robbed three Roanoke businesses in a week -- the last one with fatal results -- Calvin Bond Watson pleaded guilty to 11 felonies, including the capital murder of Jayeshkumar Brahmbhatt, the manager of the One Stop Market in the 1700 block of Williamson Road Northwest. He was sentenced Monday to three life terms plus 43 years in prison.
Categorizing Workplace Violence
Type 3 – Worker on Worker or Violence by Co-Workers: Perpetrator is an employee or past employee of the business who attacks or threatens employees or past employees.
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02/22/12: A Wal-Mart worker fatally shot himself after wounding boss, sheriff says. The shipping department supervisor was shot in the leg and is expected to recover from her injuries. The officers were not hit by the shots and did not have time to return fire before the man fatally shot himself in the chest. According to officials, the female victim was the male suspect's manager. He allegedly shot her after returning from his lunch break early Wednesday afternoon.
Wal-Mart Employee Who Killed Self Had Recently Returned To Work
UPDATE – 02/24/12: A Walmart distribution center employee who shot and wounded his supervisor before fatally shooting himself had some issues with the manager but nothing his family believed would escalate into violence.
3 Die In Los Angeles Hospital Shooting
Los Angeles - A hospital worker killed his boss and another manager at the Long Beach Memorial Medical Centre and then turned the gun on himself, the LA Times reported. Another man was wounded in the shooting.
The gunman was identified as a pharmacy technician at the hospital, a police spokesperson said.
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PLACERVILLE, CA ShootingFebruary 1, 2011
(CBS/AP) A janitor was charged Friday with murdering Northern California elementary school principal Sam LaCara, who was shot after the suspect was sent home over a personnel dispute.
• John Luebbers, 44, was charged after telling investigators he shot the 50-year-old LaCara twice in the office at Louisiana Schnell Elementary School in Placerville, police said.
Rhode Island newspaper employee had warned that something would happen, paper says
The night before a Providence Journal employee fatally shot two co-workers and wounded a third, he told a friend he'd had enough of being harassed at work and warned that something was going to happen, the newspaper reported Monday.
Carlos Pacheco shot two co-workers and wounded another at a newspaper productions plant in Providence, Rhode Island. He was later found dead in a burned-out car.
The suspect's burned vehicle was found in
nearby Warwick after the shootings, police said.
www.cnn.com
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Categorizing Workplace Violence
Type 4 – Personal Relationships: Perpetrator usually does not have a relationship with the business but has a personal relationship with the intended victim outside of work.
Often these include current or former spouses, lovers, relatives, friends or acquaintances.
Elmwood, LA Man Kills Wife, Self, And 1 Other
AP - After Barbara Cavalier left her husband six months ago, he had no idea where she was living. But he knew where she worked.
Wednesday afternoon, Chris Cavalier armed himself with two pistols, walked into the Elmwood siding supply business where Barbara was a data entry clerk, shot and killed her and another employee then took his own life, authorities said.
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Alleged Gunman's Wife Worked At Carthage (NC) Nursing Home, Police Say
• The man accused of killing eight people in a shooting spree at the Pinelake Health and Rehab Center is the husband of a woman who worked there. The two may have been separated. It is unknown if the wife was in the building at the time.
• The ex-wife of the gunman accused of killing eight people and injuring three in a nursing home said he had “violent tendencies.”
Within a one-week period in October, 2012
• A beauty parlor in Wisconsin and one in Florida both turned into bloody crime scenes after gunmen who apparently were enraged at their estranged spouses opened fire at the salons where their wives worked.
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Within a one-week period in October, 2012
• In suburban Milwaukee, an armed man killed three salon employees, including his estranged wife who recently had obtained a restraining order after reporting domestic abuse.
• Another gunman had opened fire at a salon in suburban Orlando, killing three women and wounding a fourth, his wife. Likewise, the shooter had been ordered to keep away from his spouse.
OSHA-Identified High-Risk Industries
Healthcare and Social Service Settings: Workers who provide healthcare and social services in psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities, residential facilities and long-term care facilities.
Workers in these fields include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel and emergency medical care personnel.
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OSHA-Identified High-Risk Industries
Rate of Workplace Violence
Late-Night Retail Settings: This includes entities such as convenience stores, liquor stores and gas stations.
Factors that put late-night retail employees at risk include the exchange of money, twenty-four hour operation, solo work, isolated worksites, the sale of alcohol and poorly-lit stores and parking areas.
NIOSH-Identified Key Risk Factors For Workplace Violence
• Working with unstable or volatile persons in health care, social services or criminal justice settings
• Working alone or in small numbers
• Working late at night or during early morning hours
• Working in high crime areas
• Guarding valuable property
• Working in community-based health/drug abuse clinics
• Exchanging money in certain financial institutions
• Delivering passengers or goods
• Working in mobile workplaces, such as taxicabs.
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Citation and Notice Procedures: OSHA’S General Duty Clause
Section 5(a)(1) of the OSH Act
“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm”
OSHA’S GENERAL DUTY CLAUSE:SECTION 5(a)(1) of the OSH Act
Before OSHA will issue a General DutyClause citation a number of conditionsmust be satisfied. There must be a hazard (real or likely)
The hazard must be recognized (at the facility or by the industry)
The hazard causes or is likely to cause serious harm or death
The hazard must be correctable (feasible abatement methodologies available)
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Documentation Necessary for a General Duty Clause Citation
OSHA 300 (Injury/Illness) logs and 301 forms documenting injuries from workplace violence for the prior five years.
Injury reports specific to instances of workplace violence. Past complaints or grievances noting the particular
hazard. Meeting minutes where workplace violence issues were
discussed. Workers’ compensation records documenting injuries
from workplace violence.
Documentation Necessary for a General Duty Clause Citation
Medical records regarding workplace violence incidents. Police and security records documenting incidents of
workplace violence. Employee interviews, which include information on any
previous incidents of violence. Actual or potential employee exposure to workplace
violence. Documentation that the workplace violence hazard was
reasonably foreseeable by the employer.
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NIOSH Publications on Occupational Violence and Homicide
• Workplace Violence Prevention Strategies and Research Needs NIOSH Publication No. 2006-144 (September 2006)
• Violence on the JobNIOSH Publication No. 2004-100D (DVD)
OSHA cites The Acadia Hospital in Bangor, Me for Inadequate Workplace Violence Safeguards
Bangor, Maine (MMD Newswire) January 28, 2011
• OSHA identified at least 115 instances between 2008 and 2010 in which employees of the psychiatric hospital and clinic were assaulted on the job by violent patients.
• OSHA cited the hospital for an alleged serious violation of the general duty clause for failing to provide a workplace free from recognized hazards likely to cause death or serious injury, along with six other-than-serious citations.
• The serious citation carries a proposed fine of $6,300.
• The six other-than-serious citations, with a total of $5,400 in fines, are for inadequate or incomplete recording
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US Labor Department's OSHA Fines Rescare Ohio For Inadequate Workplace Violence Safeguards At Residential Care Facility In Fairfield, Ohio
FAIRFIELD, Ohio – The U.S. Department of Labor's Occupational Safety and Health Administration has cited ResCare Ohio Inc. for exposing employees to workplace violence at the company's Fairfield residential care facility, which operates as Camelot Lake. OSHA has proposed penalties of $8,700.
Camelot Lake accumulated a total of 20 workplace violence cases from 2009-2012, resulting in 53 days away from work and 37 days of restricted duty. Employees have been exposed to physical assaults during routine interaction with residents who have a history of violent behavior.
October 3, 2012
US Department of Labor's OSHA Cites TMT in Dallas, Texas,Following Robbery, Death Of Worker at Garland Whip In store
Safety violations found at convenience stores in Garland, Dallas and Mesquite
DALLAS – The U.S. Department of Labor's Occupational Safety and Health Administration has cited TMT Inc. with four serious safety violations following an aggravated robbery that resulted in the death of an employee at the company's Whip In convenience store in Garland. Each of the company’s four stores were cited for similar violations
Each store was cited with violating OSHA's "general duty clause" for failing to provide a workplace free from recognized hazards likely to cause serious injury or death. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
The citations carry total proposed penalties of $19,600.
November 19, 2012
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• Conduct a Comprehensive Workplace Violence Hazard Assessment
• Assess plans for new construction or physical changes to the facility to eliminate or reduce security hazards.
OSHA’s “Best Practices”
Training– All employees should understand the
importance of reporting early warning signs of violent employee outbursts to management:• All incidents of violence should come to the attention
of one person.• Management should treat all information that reaches
them as confidential.• Management should inform employees of its written
policy against violence and threats of violence and encourage employees to report violent behavior
Install and regularly maintain alarm systems and other security devices, panic buttons, hand-held alarms or noise devices, cellular phones and private channel radios where risk is apparent or may be anticipated. Arrange for a reliable response system when an alarm is
triggered.Provide metal detectors—installed or hand-held, where
appropriate—to detect guns, knives or other weapons.Use a closed-circuit recording on a 24-hour basis for high-
Establish liaisons with local police and state prosecutors.
Give police physical layouts of facilities to expedite investigations.
Require employees to report all assaults or threats to a supervisor or manager.
Advise employees of company procedures for requesting police assistance or filing charges when assaulted and help them do so.
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OSHA “Best Practices”Provide Management Support During Emergencies
• Respond promptly to all complaints.– Set up a trained response team to respond to
emergencies.
– Use properly trained security officers to deal with aggressive behavior.
OSHA “Best Practices”Develop A Written, Comprehensive Workplace
Violence Prevention Program
• The written program should include:– A policy statement regarding potential violence in the
workplace and assignment of responsibilities.
– A workplace violence hazard assessment and security analysis, including a list of the risk and how the employer will address the specific hazards identified.
– Development of workplace violence controls, including implementation of engineering and administrative controls and methods used to prevent workplace violence incidents.
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OSHA “Best Practices”Develop A Written, Comprehensive Workplace
Violence Prevention Program
• The written program should include:– A recordkeeping system designed to report any
violent incidents.
– The reports must be in writing and maintained for review and at least annually to analyze incident trends.
– Development of a workplace violence training.
– Annual review of the workplace violence prevention program with revisions and updates as necessary.
OSHA “Best Practices”Develop A Written, Comprehensive Workplace
Violence Prevention Program
• The written program should include:– Development of procedures and responsibilities to
be taken in the event of a violent incident in the workplace.
– Development of a response team responsible for immediate care of victims, reestablishment of work.
– Employee assistance programs, human resource professionals and local mental health and emergency service personnel should be contacted for input in developing these strategies.
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SOUND ADVICE FOR EMPLOYERS
Immediately Contact Your Attorney Following Any Act Of Violence.
• Remember, to prove a violation of the law, OSHA must show that workplace violence was a recognized hazard in the industry and that there are feasible means of abatement.
So, What if the Employee Who
Causes the Violence is Your Employee?
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“PROFILE” OF A PERPETRATOR
THERE IS NO PROFILE!
Dangerous People-Can YOU Pick Them Out?
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Profiling A Dangerous EmployeeProfile Characteristic
• Previous violent behavior
• Age - Strong association between youth and violence
• Gender– 90% arrested are male
– All workplace homicides were committed by men until 1993!
Profile Characteristics of Violent Employees and Providers
• Drug and alcohol abuse– Substance abuse is highly correlated with
violent behavior and predisposes individuals to violence through a variety of mechanisms
• Socioeconomic status and employment stability – Violence is markedly higher among members
of lower socioeconomic groups
• Easily influenced by the media– A regular diet of media violence reinforces
violent tendencies.
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Employee Early Warning Signs Of
Workplace Violence• Suffers from paranoid disorders• Chronically disgruntled - seen as a
troublemaker• Often eats meals by themselves • Quick to perceive unfairness, injustice or
malice in others when that is unwarranted• Litany of gripes• Conspiracy oriented• Does not take responsibility for his problems• Threatens after termination, layoffs,
disciplinary action or adverse assignments
Tucson, ArizonaJanuary 8, 2011
• “We do have one student in class who was disruptive today, I’m not certain yet if he was on drugs or disturbed”
• “He scares me a bit”
• “He is one of those whose picture you see on the news after he has come into class with an automatic weapon”
Violence Nationally
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Employer Liability for Workplace Violence• Respondent Superior: Most notably, employers may
be vicariously liable for the acts of their employees under the traditional doctrine of respondent superior.
• Employers may be vicariously responsible for incidents of workplace violence if the violent act was committed by an employee in the course and scope of employment.
• Vicarious liability, or respondent superior, does not consider the actions of the employee, only whether the employee’s actions were within the scope of employment.
Scope of the EmploymentOne common standard provides that
actions are within the scope of employment if:
• The actions taken were the type of conduct the Employee was hired to perform;
• The actions took place substantially within the time and space limits of the employment, i.e., during working hours, at the place where the Employee was to be, doing what was supposed to be done;
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Scope of the Employment
Actions are within the scope of employment if:
• The actions were taken at least partly for the benefit of the Employer; and,
• If the actions were intentionally harmful; they were foreseeable by the Employer
Potential Legal Risks
• Negligent Hiring
• Negligent Retention of Employment
• Negligent Security
• Negligent Failure to Warn
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Negligent Hiring• The employer knew or should have known that
an applicant was not "fit" for a job because of dangerous propensities, but hires the person anyway.
• Inadequate investigation into an applicant's background and other poor pre-screening measures may result in liability for the employer if steps are not taken which are adequate for the level of risk associated with a position.
• If there is information available to the employer that the employer simply failed to obtain, liability may be placed on the employer.
Negligent HiringHow Might It Affect Employer Liability?
David Berkowitz: Experienced security guard; commercial driver’s license; veteran; high school graduate; churchgoer; serial killer.
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Negligent Hiring
• If an employee rapes a coworker and had a prior conviction for sexual assault or, for example, was fired from two previous jobs for sexual misconduct, the failure to obtain this information could render an employer negligent and subsequently liable for the present crime.
• The employer's negligence in hiring the applicant was the proximate cause of the employee's injuries.
Housekeeper's record was at handA criminal check could have been run on a woman charged with killing two retirement
community residents
PITTSBORO (NC) --Two elderly victims of fatal beatings at Galloway Ridge retirement community in Pittsboro could have learned -- on their own or with the facility's help -- about the criminal background of the woman charged in their deaths. Seven years ago, Barbara Clark pleaded guilty to stealing more than $5,000 from a 90-year-old man at the Durham retirement community where she worked and was ordered to avoid all contact with the elderly.
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A lack of reasonable care in hiring by an employer may be found in the following examples:
• Failure to read a job applicant’s resume or job application
• Ignoring conflicting or overlapping dates on the resume or application
• Failure to inquire about gaps in dates on the resume or application
• Ignoring “red flags” such as previous firings• Failing to perform a background check on an
applicant
Negligent Hiring
Negligent Hiring
How to Avoid Negligent Hiring– Review applications
– Question about gaps in employment
– Contact prior employers
– Contact all references
– Document efforts
– Complete screening process before offering employment
Suburban Hospital Worker Charged In Fatal Stabbing Of Boss; Was Acquitted In 2006 Killing(AP) BETHESDA, Md. — The victim, Roosevelt Brockington,
was stabbed more than 70 times in a basement boiler room. Detectives quickly identified a suspect: Keith Little, a hospital employee.
• Detectives said the brutality of the crime indicated a lot of anger. They said the recent poor performance review from Brockington kept Little from getting a raise.
• In 2006, Little was acquitted of second-degree murder in the shooting death of Gordon Rollins, a janitor at a facility where Little worked as a maintenance man.
• The two argued when Rollins accused Little of stealing tools. Rollins was then found shot to death.
The Washington Post January 7, 2011
Negligent Retention of Employment
Prior actions of the employee show that he or she was unfit for the job or should not have kept his or her job,
The employee posed an unreasonable risk of harm to others,
The organization knew or should have known the employee was unfit, and
Another employee or third party was injured by the employer’s actions or lack of action.
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Negligent SupervisionNegligent Retention
Employer may be held responsible for the conduct of an incompetent employee if the employer failed to use due care in monitoring (to detect problems) and retaining (after detecting and failing to address problems)
*This duty may not extend to off-duty conduct.
“Reasonable Suspicion”
Employer’s Duty is Two Fold:1. Conduct a reasonable investigation and, based
on the findings,2. Initiate reasonable intervention.
Reasonable intervention, in negligent retention cases, typically amounts to taking the appropriate actions to prevent reoccurrence of the offense.
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Negligent Retention of Employment
• Occurs when an employer becomes aware, or should become aware, of an employee's unsuitability, yet fails to take any action.
• When any type of negative or violent incident occurs, it should be documented, and the offending employee should be disciplined.
• Liability can fall on the employer if the employer nevertheless retains the worker in breach of a duty of care owed to the injured employee; and
• The employer's negligence in retain the worker was the proximate cause of the employee's injuries.
Gunman Lost His Job, Then Opened Fire, Killing 5Minneapolis, Minnesota September 29, 2012
• The family of a man gunned down at his office September 27 has sued his employer, claiming his managers botched the firing of the employee, who then attacked and killed six co-workers. According to the lawsuit, Accent Signage Systems managers should have known the killer employee, Andrew J. Engeldinger, was dangerous based on his work history and frequent intoxication at work.
• Company managers had repeatedly cited Engeldinger for offensive behavior, tardiness and poor job performance.
• Managers gave him a reprimand and told him his performance had to immediately improve or he'd be terminated.
• The day of the shooting, Engeldinger was told to head to his manager's office. He left the building, grabbed a gun and two loaded magazines, each carrying 15 bullets, from his car before meeting with his manager. When they fired Engeldinger and gave him his final paycheck, he opened fire, killing both.
• He also killed the company owner, a UPS deliveryman and co-worker Joseph Beneke before taking his own life.
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• Hasan was promoted from the rank of Captain to Major in May because of a shortage of majors in the medical corps – not for job performance.
• Hasan had shown warning signs for years even since his residency in medical school.
• A former classmate described him as a “ticking time bomb” and stated that when he was a student in Maryland he gave a presentation justifying suicide bombings.
Avoiding Claims of Negligent Hiring or Retention
• Perform background checks.
• Use special care in hiring workers who will have a lot of public contact. – Workers who go to a customer's home,
– Workers who deal with vulnerable people such as children, the elderly, or people with disabilities, and
– Workers whose jobs give them access to weapons.
• Root out problem employees immediately.
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Negligent Security
• Courts have, with increasing frequency, recognized claims for "negligent security" brought by employees who have suffered criminal attacks in the workplace.
• To offer a successful defense in a negligent security liability case, the employer must show the event was not foreseeable, that the employer acted reasonably and responsibly, and that the level of security met or exceeded “community standards”.
Jury Awards Family $5.5M In Parking Lot Shooting
CBS/AP - The family of a Philadelphia teen who was gunned down outside Hahnemann University Hospital won a multi-million dollar lawsuit.
The estate of the 18-year-old decedent brought this negligent security action against Hahnemann University hospital after the decedent was shot and killed during an apparent robbery in the defendant’s Philadelphia parking lot. The plaintiff claimed that the death could have been prevented if the defendant had taken recommended security measures, including installation of bulletproof glass in the parking attendant’s booth where the decedent worked or by simply changing the lot’s hours.
Philadelphia (CBS 3)
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Eight Die in Goleta Post Office ShootingWoman Fatally Wounds 6 Postal Service Employees, Dies of Possibly Self-Inflicted Shot
• GOLETA, Calif. — A former postal worker who had been put on medical leave for psychological problems shot seven people to death at a huge mail-processing center and then killed herself in what was believed to be the nation's deadliest workplace shooting ever carried out by a woman.
• Postal Inspector Randy DeGasperin said the woman was placed on medical leave in 2003 for psychological reasons.
• He said she had been removed from the building by sheriff's deputies that year for acting strangely.
• The 44-year-old woman had not worked at the plant for more than two years but still managed to get inside the fenced and guarded Santa Barbara Processing and Distribution Center, apparently by driving her car close behind another vehicle through a gate.
Monday, January 30, 2006
Negligent Failure To Warn
When the perils of employment include a danger, known to the employer, of criminal attacks by third persons, the employer may have a duty under state or federal law to warn the employees of the danger.
Modern cases examining the duty to warn hinge upon foreseeability.
Employers should be very careful when giving prospective employers references and other info about a terminated worker.
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Kansas Hepatitis C Victims File Suit Against UPMCOctober 1, 2012
PITTSBURGH (KDKA) — Linda Ficken contracted Hepatitis C in a Kansas hospital, but last month she sued UPMC Presbyterian in Pittsburgh for gross negligence.
The patients in Kansas say UPMC did nothing to prevent them from getting the hepatitis C virus from David Kwiatkowski, a lab technician who was fired from UPMC Presbyterian four years ago for stealing and testing positive for the drug fentanyl but who was not reported to police.
And the suits allege that since UPMC didn’t report Kwiatkowski, he was free to work at eight more hospitals in Maryland, Arizona, Kansas and New Hampshire where he was finally arrested in July, accused of infecting 32 people with Hepatitis C.
Negligent Failure To WarnEmployment References and Defamation Lawsuits
To prove defamation, a former employee typically must show that you intentionally damaged his or her reputation by making harmful statements about the employee that you knew to be false.
Designate one person to give references
Insist on a written release
Discuss merits and risks of disclosure
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Negligent Failure To WarnJerner v. Allstate Insurance Co., 650 So.2D 997, (1995) cert. denied
Paul Calden worked for Allstate Insurance Company for only nine months.
He refused to have his photograph taken, asserting that his image couldn’t be captured on film;
He claimed that he was from another planet; and,
He compiled a list of co-workers and wrote the word “blood” next to their names.
Calden’s behavior at Allstate was so extreme that his supervisor called the sheriff’s department and the FBI to find out if they were investigating him.
He was finally terminated when he was found carrying a gun in his briefcase.
Negligent Failure To WarnJerner v. Allstate Insurance Co., 650 So.2D 997, (1995) cert. denied
Allstate had a policy of not giving any recommendation letters for former employees to subsequent employers.
Nevertheless, they gave Calden a letter of recommendation in spite of his behaviors.
The letter stated that he had voluntarily resigned because his position had been eliminated in restructuring.
Calden was later hired by Fireman’s Fund based on the recommendation.
When Fireman’s Fund later fired him, he went to the company cafeteria and shot five supervisors involved in his firing, killing three of them
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CONFLICTING LEGAL ISSUES ASSOCIATED WITH WORKPLACE VIOLENCE
• On one hand, employers who fail to take proactive measures to prevent workplace violence may incur legal liability under federal and state law.
• At the same time, other federal and state laws limit employer’s ability to screen and eliminate applicants and employees who may pose a threat to the workplace.
Who’s Background Should You Check?
• Nearly 20% of people within the United States have criminal records, and employees are responsible for 60% of losses due to fraud, information and property thefts.
• 30% to 40% lie on applications and resumes
• 42% of education credential checks revealed “discrepancies”
• BUT, the average cost of a negligent hiring settlement:
$1.6 million
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“Infinity Screening”“Recurring Screening”
• Recurring screening lessens the risk associated with the changes in employee status and position.– It can ensure that employees have not obtained a conviction while they
have been employed and that they have kept up with their certifications and licenses
• A recurring screening program rolled out broadly can help your firm mitigate unnecessary risk by ensuring consistency.
• Staying informed of employee conduct inside or outside of the workplace will ultimately enable your company to make informed decisions to ensure protection against negligent retention claims.
WORKPLACE VIOLENCE and the AMERICANS WITH DISABILITIES ACT
Workers who commit violent acts in the workplace may suffer, or claim to suffer from a mental impairment and seek protection from termination under the ADA.
The ADA prohibits discrimination against employees who have an actual or perceived physical or mental disability.
Employers who are found to be discriminatory face compensatory and punitive damages.
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WORKPLACE VIOLENCE and the AMERICANS WITH DISABILITIES ACT
While the ADA precludes an employer from taking a pre-emptory action against an applicant based solely on a presumption of mental or emotional instability, it does not prevent an employer from taking action where an employee threatens or engages in violent behavior.
THE AMERICANS WITH DISABILITIES ACT
The ADA contains a specific exception for employees who pose a “direct threat” – that is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”
A direct threat must be “based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.”
Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.”
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THE AMERICANS WITH DISABILITIES ACT
In making this determination, employers should rely on the following four factors:
1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.
PRECAUTIONS FOR PRE-EMPLOYMENT SCREENING: BACKGROUND CHECKS
Special Note: In Virginia - HB 690 Criminal Background Checks; Fingerprinting Of Applicants And Employees Of Public Transit Services
SUMMARY AS PASSED IN THE HOUSE AND SIGNED BY THE GOVERNOR: Authorizes certain transportation district commissions and their contractors and public service corporations or contractors that provide public transit services to a locality to require fingerprint checks of applicants and employees so that an FBI criminal background check can be conducted.
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PRECAUTIONS FOR PRE-EMPLOYMENT SCREENING: BACKGROUND CHECKS
Fingerprinting Of Applicants
• Pre-employment screening is the process of using background checks and drug testing to determine the background and identity of a new employee.
• Gone are the days of a simple reference check and a few phone calls to screen new employees.
• Over 96% of HR professionals report that their companies do background checks.
Prior to beginning a background check, it'simportant you comply with the Fair Credit Reporting Act and the American With Disabilities Act.
– Under the FCRA, you are required to have employees sign a disclosure form granting authorization to perform a background check.
– The FCRA is not just restricted to credit reports but includes all “consumer reports."
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BACKGROUND CHECKINGThe American With Disabilities Act (ADA)
The Equal Employment Opportunity Commission (EEOC) defines a disability as a person who:
– Has a physical or mental impairment that substantially limits one or more major life activities
– Has a record of such an impairment
– Or is regarded as having such an impairment
CRIMINAL BACKGROUND CHECKS –TITLE VII’S DISPARATE IMPACT THEORY
An employer’s consideration of criminal records may pass muster under Title VII if an individualized assessment is made taking into account:
– The nature and gravity of the offense or offenses.
– The time that has passed since the conviction and/or completion of the sentence.
– The nature of the job held or sought. (How the job relates to the type of crime committed)
REMEMBER: Criminal background checks are considered “consumer reports” under the Fair Credit Reporting Act (FCRA), employers who use third parties to conduct criminal background checks must ensure that they comply with FCRA.
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The bulk of the new EEOC Guidance addresses the EEOC’s concerns of Disparate Impact Discrimination of African-Americans and Hispanics as a result of criminal background screening.
What is a “disparate impact?”
• Facially neutrally
• Has a disproportionately negative impact on a protected class
To avoid Title VII liability– If a facially neutrally policy has a
disproportionate effect of screening out a Title VII protected group (e.g., a particular race), the Employer has the burden of establishing that the employment policy/practice is job-related for the position in question and consistent with business necessity.
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Criminal Background Checks –Conviction Records
EEOC’s Position– Employer’s policy or practice of excluding
individuals from employment on basis of conviction records has adverse impact on Blacks and Hispanics
– Such policy is unlawful under Title VII
– Employers must consider:• Nature and gravity of the offense(s);
• Time passed since conviction and/or completion of sentence; and
• Nature of job held or sought
Arrests:
– An arrest should not be grounds for adverse action.
– The facts underlying the arrest can be the basis for an adverse action.
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Convictions:
– Inquire about criminal history when conditional offer is made, and not on job application.
– Document objective factors for employment decision-making
– If background screening results are a factor in adverse decision, document why.
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–Review prior employment decisions for consistency.
–Centralize employment decisions as much as possible to ensure consistency.
Credit History Checks
EEOC states that “inquiry into an applicant’s” credit history “generally should be avoided because they tend to impact more adversely on minorities and females.”
• Exceptions - if employer can show that information is essential to the particular job in question
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The guidance considers how domestic violence issues may implicate fair employment laws, such as Title VII, which prohibits sex-based discrimination, and the Americans with Disabilities Act (ADA), which could apply to certain domestic violence/employment situations.
Domestic Violence: EEOC Guidance: November 2012
Job PerformanceTardiness
Absenteeism
Mistakes on the job
Over-stressed employee
Organizations lose an estimated $727.8 million in productivity and 7.9 million paid work days
annually due to domestic violence.
Domestic Violence: Impact on Organizations
(Society for Human Resource Management)
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The EEOC's guidance recommends that employers consider the following possible scenarios:
An employer terminates the employment of an employee after learning that she had been subjected to domestic violence due to a fear of potential “drama battered women bring to the workplace.”
The EEOC's guidance recommends that employers consider the following possible scenarios:
A male employee is attacked by a stranger in a bar fight and asks his boss for time off to testify in court. The boss allows it.
Similarly, a female employee is assaulted by her husband and asks for time off to testify against him at trial. The boss denies her request because it is "just a marital problem" and that "women think everything is domestic violence." He also feels that the stranger attack on the male employee was the only "real crime."
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The EEOC's guidance recommends that employers consider the following possible scenarios:
If during an interview a male applicant mentions he has obtained a restraining order against his domestic partner, the hiring manager refuses to hire him because he believes that men should be able to protect themselves and that only women can be true victims of domestic violence.
Domestic violence also raises potential issues under the ADA:
A new employee is attacked by her ex-boyfriend and as a result has anxiety and depression. Although she doesn't qualify for FMLA and she doesn't have any vacation or sick leave, she asks her boss if she could have time off for treatment.
He tells her the company applies the attendance policy the same to everyone and denies her the time off. This could violate the ADA, as the time off could be considered a reasonable accommodation.
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Domestic violence also raises potential issues under the ADA:
The same employee asks for a transfer to a different shift so she can seek treatment.
The boss tells her she must work for the company for at least six months before she can apply for a transfer and denies her request. This again could violate the ADA as modification of the transfer policy could be a reasonable accommodation.
Remember …….
The Equal Employment Opportunity Commission (EEOC) new Guidance underscores the legal risks involved in dismissing or refusing to hire someone an abusive partner has victimized.
Neither Title VII of the Civil Rights Act of 1964 nor the Americans with Disabilities Act (ADA) expressly prohibits discrimination against individuals who are victims of domestic violence, sexual assault or stalking. BUT …….
Such victims may be protected from discrimination under the federal laws.
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USING CRIMINAL AND CIVIL STATUTES TO RESPOND TO THREATS OF VIOLENCE AGAINST EMPLOYEES
Harassment
• Employers can use criminal and civil statutes to remove miscreants from the business area and to prevent individuals from interrupting business operations with harassing telephone calls.
USING CRIMINAL AND CIVIL STATUTES TO RESPOND TO THREATS OF VIOLENCE AGAINST EMPLOYEES
Trespassing• An employer may formally prohibit a
potentially violent person from entering the workplace and to remove the person if he/she achieves entry.
Formal notice is achieved by:•Providing formal individual written notice
to the person barred from entering;•Providing oral notification to the barred
party; or•Posting the premises.
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USING CRIMINAL AND CIVIL STATUTES TO RESPOND TO THREATS OF VIOLENCE AGAINST EMPLOYEES
Emotional Distress• An employer can use the harassment and
stalking statute where the law deems that the business itself is the victim of illegal acts.
• In cases where the threat of violence is directed against an individual employee, the employee must utilize the criminal statutes to protect himself/herself.
Conclusions and Recommendations
The ChallengeEmployers must determine how to
Ensure a safe workplace without
violating individual rights.
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Conclusions and Recommendations
The definition of a workplace is not just limited to the actual physical workplace but rather consists of any area in which the employee is performing any work-related duties.
4 Firefighters Shot, 2 Fatally, in New York; Gunman Dead
Webster - Before they could begin to extinguish the fire, the firefighters were met by a burst of gunfire. Four were hit by the volley of bullets, and two died. An off-duty police officer from nearby Greece, N.Y., who was on his way to work, was wounded when he and his car were hit by shrapnel.
December 28, 2012
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OSHA Fines AT&T In Death Of Worker After Gladstone AttackMarch 8, 2013
The Kansas City Star - Federal officials have cited AT&T in the death of a worker last year in Gladstone and proposed a $7,000 penalty against the company.
• The citation by the Occupational Safety and Health Administration alleges AT&T failed to ensure that Kevin Mashburn had a way to readily summon assistance after he was assaulted during a robbery while working in the field last September.
• According to OSHA: “Approximately 19 minutes elapsed between time of injury and the moment someone became aware the employee was attempting to summon emergency assistance and 50 minutes before emergency assistance was able to locate the injured employee.”
Conclusions and Recommendations
Security Measures
Whether security measures are needed in the workplace, and the nature and
extent of those measures, will depend upon the risk assessment of
hazards to employees and the particular facts and circumstances of
each case.
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Conclusions and Recommendations
Employers should always be looking at ways to make their employees feel safe and secure while at work.– Revisiting security policies and procedures
(being sure Security personnel are adequately and appropriately trained)
– Disaster preparedness
– Security upgrades
Conclusions and Recommendations
Security Measures
• Courts have considered a number of factors in cases addressing the necessity and adequacy of security in the workplace:– The adequacy of lighting– Use of alarms, and visibility of video cameras– Security against unauthorized entrance and access to
exits and routes of escape– Availability of phones or other means of summoning
assistance– The posting of signs advising intruders of security
measures
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Conclusions and Recommendations
Security Measures
• The use of armed guards• The isolation of workplaces and parking lots• The visibility of cash transactions and the use
of drop safes to minimize cash on hand• The security training given to employees and
consideration given to their complaints • Most importantly, the business owner's
knowledge of prior criminal activity and violent occurrences in the area.
Conclusions and Recommendations
• Conduct a Risk Assessment– Look at every aspect of their workplace
to identify possible risks of violence.
• Develop and Publish a Written Policy– Employers should develop written
policies and procedures for minimizing the risk of violence.
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Conclusions and Recommendations
• Develop an Emergency Response Program
– An emergency response program may help prevent violent situations
– Who talks to the press? The authorities?
– If a potentially violent episodes arises suddenly, a coordinated and well thought out response program is critical to effectively neutralize the potential for a disastrous outcome
Conclusions and Recommendations
• Training– All employees should understand the
importance of reporting early warning signs of violent employee outbursts to management:
• All incidents of violence should come to the attention of one person.
• Management should treat all information that reaches them as confidential.
• Management should inform employees of its written policy against violence and threats of violence and encourage employees to report violent behavior
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Conclusions and Recommendations
Appropriate Action In Dangerous Employee
Dependent on the Severity of the Incident
Always be aware of your options:
• Refer to Employee Assistance Program or a competent professional to evaluate
• Reassignment
• Separation from employment
CLOSING REMARKS
Never Ignore Warning SignsEmployers must carefully consider and investigate
all reported employee threats of violence
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• NEVER be a hero!*• GET AWAY from the problem!• Call the POLICE!
* A good friend of mine, in law enforcement, suggested that this might be wrong. Now is the time for all of us to act and,
if possible, take out the threat! I can not recommend that idea as a corporate policy, I do, however, agree with the sentiment.
THE BEST ADVICE!!!
CLOSING REMARKS
The "Violence in the American Workplace" survey, released February 15, 2012, reveals that over half of Americans employed outside their homes (52-percent) have witnessed, heard about or have experienced a violent event or an event that can lead to violence at their workplace.
Allied Barton Security Services Survey, 2012
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CLOSING REMARKSTHE BOTTOM LINE ----
Workplace violence needs to be proactively dealt with – and Now.
According to the Occupational Safety and Health Administration (OSHA), employers do have a responsibility for ensuring the safety of their employees, which includes protection from workplace violence.
Violence in the Workplace and Your Company
Under federal and state law, employers have a legal duty to take the reasonable steps necessary to prevent workplace violence and related behavior.
• OSHA requires that employers protect employees against recognized workplace safety hazards likely to cause serious injury or death.
• Title VII of the Civil Rights Act of 1964 requires employers provide policies and procedures to that intended to identify and prevent all forms of workplace harassment, including harassment that creates a hostile or offensive workplace environment.
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Violence in the Workplace and Your Company
Train, Train, Train
• Employers should train their entire workforce on the Company’s policies that are designed to prevent harassment, and to address harassment as soon as they learn of its occurrence.
• Managers and Supervisors must be aware of what is going on in their areas of responsibility and respond quickly and effectively.
If You Feel Overwhelmed: Call Us!
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Victor O. Cardwell, Esq.Woods Rogers PLC
10 S. Jefferson StreetWachovia Tower, Suite 1400
Roanoke, Virginia540.983.7529
540.983.7711 (Facsimile)www.woodsrogers.com
Violence in the Workplace:
The Legal Issues Facing Employers in 2013A joint Woods Rogers - HCR seminar
PRESENTERS:
Stephen A. Burt, PresidentWoods Rogers Consulting10 S. Jefferson StreetWachovia Tower, Suite 1400Roanoke, Virginia540.983.7750540.529.2258 (Mobile)www.wrc-hcr.com
