PREVENTING AND MANAGING THE THREAT OF ......workplace violence, construction litigation and related...

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© 2018 ARTHUR J. GALLAGHER & CO. | AJG.COM

Higher Education Practice

PREVENTING AND MANAGING THE THREAT OF WORKPLACE VIOLENCE Mark A. Lies II, Seyfarth Shaw LLP

Community College Risk Management Consortium 2018


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Higher Education Practice Mark A. Lies II

Chicago Office (312) 460-5877 [email protected]

Areas of Practice Litigation Product Liability Construction Safety and Health Litigation, Construction Workplace Violence Employment Law Environmental, Safety & Toxic Torts OSHA

Experience Mr. Lies is a partner in the Chicago office. His practice areas include product liability, occupational safety and health, workplace violence, construction litigation and related employment litigation which arises in these areas. He has developed related expertise in defending employers against claims of inadequate hazardous materials and fire safety response. Mr. Lies has advised numerous clients on a national basis from 1975 to the present on compliance with federal OSHA regulations for the control, removal, and handling of asbestos. Because of his work in this industry, he has defended related toxic tort litigation involving exposure to hydrogen sulfide, benzene, lead, silica, and other toxic substances. He is an adjunct member of several national safety organizations including the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA). He has written extensively on workplace violence and is the Editor of Preventing and Managing Workplace Violence, ABA Publication, 2008

Education J.D., DePaul University School of Law (1974) B.A., University of Notre Dame (1968)

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• Employers spend $4.2 Billion/year due to workplace violence.

• More than 1000 homicides occur at work each year.

• Most common type of workplace victimization is simple assault.

• Domestic violence is the 3rd leading source of conflict leading to death in the workplace.

Workplace Violence by the Numbers


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• “Violence” means the attempted, threatened, or actual conduct that causes and/or is likely to cause injury, including any threatening statement or behavior which gives an employee reasonable cause to believe that he/she or other worker is at risk of injury.

Defining Workplace Violence


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• Type I Individual with no connection to workplace commits a crime.

• Type II A violent act by an individual directed to an employee at the workplace by customer/client.

• Type III Violent act by a current/former employee directed at another employee.

• Type IV Violent act at the workplace by a another person who has a relationship with an employee.

Defining Workplace Violence


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Title VII Civil Rights Act • Prevention of Workplace Harassment which

may lead to violence OSHA

• Safe Work Environment Common Law

• Negligent Hiring, Negligent Retention, Negligent Supervision, Negligent Training, etc.

Workers’ Compensation Protection for Victims of Domestic Violence

Legal Duties


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Americans With Disabilities Act • Disability v. Behavior • Pre-Employment Inquiries • Reasonable Accommodation

Background Checks • Employee Privacy and Fair Credit Reporting

Acts Defamation, False Light, Wrongful termination

Legal Limitations


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Criminal History

Polygraph Tests

Drug Testing

Paper and Pencil Testing

Legal Limitations


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General Duty Clause, Section 5(a)(1) of the OSH Act • Management Commitment and Employee

Involvement – “Zero Tolerance” (but not necessarily automatic

termination)

• Worksite Analysis

• Hazard Prevention and Control

• Safety and Health Training

OSHA Enforcement


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• Clear Statement of Policy – “Zero tolerance” – Definition of prohibited acts or threats (include

bullying) – Examples of prohibited acts or threats – Responsibility to report acts or threats – Encouragement of EAP use

• Identification of Response Team (Security, HR, Legal, Management, Psych Consultant)

Elements of an Effective Anti-violence Policy


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• Response Plans – (Weapons?) • Early Warning Signs (with caveats) • Actions as Indicators (with caveats) • Managers’ Responsibilities

– Communicate Policy to Employees – Know Response Team and Plan – Be Alert to Warning Signs – Seek Advice or Assistance from Team

Elements of an Effective Anti-violence Policy (Cont.)


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• Don’t Consider Safety First

• Don’t Ask the Right Questions

• Don’t Communicate Concerns Clearly and Early

Employees are wrong only if they…


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• Mishandled Termination or Discipline

• Disgruntled Former Spouses or Significant Others

• Weapons or Drugs on work site

• Retaliation by “Accused”

Potential Problem Sources:


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• Carrying Concealed Weapons (CCW) laws set forth the requirements for an individual to carry a concealed firearm in public—vary by state.

• Most states now allow citizens to carry concealed weapons in public. (Only DC does not).

Employers must consider their policies with respect to guns in employee cars or in the workplace. Policies will require a state-by-state analysis.

Guns in the Workplace


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Psychosis

Stroke

PTSD

Brain Tumor

Fear

Adolescence

Depression

Grieving

Hormones

Medication

Diabetes

Epilepsy

Senility

Stress

Bipolar Disorder

ADD

Exhaustion

Traumatic Situation

Mid-Life Crisis

Religious Zeal

Divorce

Amnesia

Puberty

Thyroid Problems

PMS

Poor Social Skills

Brain Damage

Alcohol

Anniversary of Loss High Fever

Personal Problems

Menopause

Schizophrenia

Crisis

History of Abuse

Illegal Drugs

Personality Disorder

Holidays

Health Problems


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Most Common Characteristics That Contribute to Violence

Personal Factors Alcohol

Aggressive History

Low Self Esteem

Lack of Social Support

Dysfunctional Personality Traits


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Most Common Workplace Factors That Cause Violence

Workplace Factors Perceived Injustice/ Mistreatment Job Insecurity/ Elimination Electronic Monitoring


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Inevitable Workplace Interactions

Interactions


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Personal Factors

Workplace Factors Interaction WORKPLACE

VIOLENCE


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• Erratic Emotions

• Alcohol/Substance Abuse

• Bizarre Actions and Thoughts

• Verbal Abuse & Argument

• Paranoia

Problematic Behaviors That Warrant Concern & Consultation


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• Co-Worker Fear

• Hopeless Statements or Actions

• Expressions of Intent to Harm

• Provocative Communications

• Refusal to Obey Policies or Procedures



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• Grievances

• Police Encounters

• Media

• Inappropriate Focus

• Continued Contact

• Identification

• Unrealistic Expectations


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• Project Calmness

• Be Empathetic

• Ask Questions

• Focus on Employee’s Concerns

• Acknowledge Employee’s Feelings

• Stay Near an Exit

Actions to Reduce Violence Potential if Confronted


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• Use Delaying Tactics to give Employee more time to calm down (offer water, etc.)

• Be Reassuring (break big problem into smaller, manageable problems)

• Ask for Employee’s Recommendations (repeat back requests)

• Calmly Explain the Consequences of any Violent Behavior

Actions to Reduce Violence Potential if Confronted


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• State Consequences of Violence • Keep Adequate Distance • Remove Potential Weapons from Area • Have Second Party Available/Present • Alert Security or Police if you FEEL in Danger • Do Not Allow Employee to Sit between You

and the Door

Dealing with an Aggressive Employee


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Distances for Normal Social Interactions

• Public – 12 or more feet

• Social – 4-12 feet

• Personal – 2-4 Feet

• Intimate – Direct Contact, 1-2

feet

• Distance should be appropriate for the situation

• Attackers can cover 21 feet in 1.5 seconds


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• Increasing Level of Agitation

• Excessive Emotional Attention Toward You

• Conspicuously Ignores You

• Facial Color Changes to Flush

• Changes from Total Lack of Cooperation to Cooperation (Set-up for Attack?)

Behavioral and Pre-Attack Cues


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• Shifting Feet to Boxer’s Stance

• Clenched Fists

• Target Glance - Looking for a Weapon to Use

• Conspicuously Looking Elsewhere while talking with you (Attempt at distraction or looking for escape route?)

• Depersonalizing Stare

Behavioral and Pre-Attack Cues


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EVACUATE If there is an accessible escape path, attempt to evacuate the premises, following these recommendations: • Have an escape route and plan in mind. • Evacuate regardless of whether others agree to follow • Leave your belongings behind • Help others escape, if possible • Prevent individuals from entering an area where the active

shooter may be • Keep your hands visible • Follow the instructions of any police officers • Do not attempt to move wounded people • Call 911 when you are safe

Active Shooter


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HIDE OUT If evacuation is not possible, find a place to hide where the active shooter is less likely to find you, with these recommendations: The hiding place should: • Be inconspicuous • Be out of the active shooter’s view • Provide physical protection if shots are fired in your direction (e.g., locating into

a bathroom and locking the door, staying as low to the floor as possible and remaining quiet and motionless)

• Not trap you or restrict your options for movement To prevent an active shooter from entering the hiding place: • Lock the door • Blockade the door with heavy furniture If the active shooter is nearby: • Silence cell phones and/or pagers • Turn off any source of noise (i.e., radios, televisions) • Hide behind large items (i.e., cabinets, desks) • Remain quiet and motionless

Active Shooter


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SELF-DEFENSE

If it is not possible to evacuate or hide, • Remain calm • Dial 911, if possible, to alert police to the active shooter’s

location • If you cannot speak, leave the line open and allow the 911

dispatcher to listen Take action against the active shooter and only when you believe your life is in imminent danger, attempt to disrupt and/or incapacitate the active shooter as follows: • Acting as aggressively as possible against him/her • Throwing items and improvising weapons • Yelling • Commit yourself to defensive physical actions

Active Shooter

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Thank You!

Mark A. Lies II Seyfarth Shaw LLP 233 South Wacker Drive, Suite 8000 Chicago, Illinois 60606 (312) 460-5877 [email protected]

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