Workplace violence is any act or threat of physical violence, harassment, intimidation or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers, and visitors.
Homicide is currently the fourth-leading cause of fatal occupational injuries in the United States. According to OSHA, nearly 2 million American workers report having been victims of workplace violence each year, and many cases go unreported.
What Is The Cost Of Workplace Violence?
According to Insurance Journal magazine, victims of workplace violence miss 1.8 million days of work every year.
Also, the annual cost of workplace violence for employers is estimated to be nearly $121 billion, according to statistics from the Department of Justice and the National Institute for Occupational Safety and Health.
In a 2016 case in California, Yowan Yang v. ActioNet, Inc., an employee was viciously attacked by his coworker and successfully sued the company. He was awarded a $2.4 million verdict plus another $5 million in punitive damages.
This author achieved a $3 million settlement against an apartment complex and a temporary-employee hiring agency in a case in which a maintenance worker with an extensive criminal record was hired and then raped, robbed and attempted to murder a female tenant.
In another case, this author achieved a confidential settlement in a suit in which a gay employee was attacked by another employee who had a history of violence against and hatred for gays. Each attack could have been avoided if employers had followed safer hiring practices. The reality is that the cost to employers – and to the victims – can be enormous.
How Can An Employer Be Liable For Violence In The Workplace?
Employer liability for workplace violence can be derived from a number of different theories under Virginia law.
These theories include:
- Negligent hiring
- Negligent retention
- Negligent supervision
- Respondeat superior (an employee committing violence while being in the scope of employment)
- Failing to provide adequate security or take reasonable safety measures
- Breach of contract
- Failing to have adequate anti-harassment and other policies in place
A classic example of employer liability is negligent hiring – something that can be prevented with proper hiring practices.
The tort of negligent hiring was first recognized by the Supreme Court of Virginia in J. v. Victory Tabernacle Baptist Church, 234 Va. 206, 372 S.E.2d 391 (1988). In Victory Tabernacle, a mother brought an action against a church and its pastor, alleging her 10-year-old daughter had been raped and sexually assaulted by a church employee, and that the church knew or should have known when it hired the employee that he recently had been convicted of aggravated sexual assault on a young girl, and that he was instructed not to be involved with children as a condition of his probation. 234 Va. 206, 372 S.E.2d 391 (1988).
What Are Proper Steps In Hiring To Prevent Workplace Violence?
The first step toward preventing the hiring of dangerous or unfit employees is to require all employees to fill out an employment application. The application provides a starting point for conducting an independent investigation into the employee’s complete background.
The application should include:
- A list of prior employers, including the type of employment, length of time with the organization, reasons for leaving, and including the address and telephone numbers of prior employers.
- Names of references, stating relationship to the applicant and the length of time known.
- Statements as to whether the applicant has been convicted of any criminal offense.
- Gaps in employment should be questioned (they may denote a period of incarceration).
Other steps to be employed include conducting criminal record checks, gathering employment references, obtaining a credit report if relevant to the job, obtaining driving records where relevant to the job, and engaging in various tests as applicable.
What Policies Should Be In Place To Address Workplace Violence?
Written policies should be established to address threats against employees, building security, weapons on the premises, visitors in the workplace, ensuring a drug- and alcohol-free environment, and enacting clear anti-harassment, discrimination, and retaliation policies.
It is critical for employers to implement a basic disciplinary system that includes the following:
- Identify what is expected of employees, and which behaviors will not be tolerated.
- Use verbal counseling and written warnings first unless the behavior is especially egregious. Be sure to document.
- Where serious allegations or incidents have arisen: investigate, document, confront, counsel, discipline, consult an attorney, and discharge if necessary.
- Mandate the reporting of harassment or other unacceptable behavior. Have an annual statement signed by all employees as to whether he or she is aware of any harassment or bullying in the workplace.
- Mandate the ongoing reporting of any criminal or driving convictions as may be applicable to the job or to the prevention of workplace violence.
What Else Should Employers Do To Protect Employees And Customers?
Be sure to follow policies once they have been put into place. Train all management employees on the enforcement of the policies. Consider training for all employees so they are prepared in the event of a workplace-violence situation – active shooter training may become an accepted standard.
Have an alarm system for the building – ensure employees understand the difference between a fire alarm and a workplace-violence-situation alarm. Consider installing a surveillance system in certain areas – especially the lobby. If possible, have a locked-door entrance system (for non-retail employers).
What Are Safe Practices For Terminating A Problem Employee?
Pack up all the employee’s personal items prior to giving him or her notice of termination. Provide reasons for the termination – if the employee understands the reasons then this is normally better than being given no reason.
Consider having law enforcement or a hired security guard present. Be sure to collect keys, card keys or any security devices from the terminated employee. Advise the terminated employee that he or she is not to return to company premises.
Let other employees know that the employee is no longer with the company, and make sure that employees understand that terminated individuals are not permitted back on company property.
When Should Law Enforcement Be Involved?
It is best to have a good working relationship with your local police department (even if you have a security guard on duty). Get to know the local police by inviting officers to workplace social events or offer them coffee while on patrol in the area.
Contact the police at the first sign of an employee becoming agitated. Have a system in place for indicating to a manager or human resources representative to make the call. Always err on the side of calling the police if the situation is getting heated. Tell the agitated employee that if he or she does not calm down that the police will be contacted. Ask the employee to take some time out – take deep breaths, perhaps suggest that the employee take some time away from the office and leave the premises.
When police have not been involved but there have been issues with an employee, including having concerns about having terminated an employee, make sure the police are aware of the situation. This author also has written many letters to terminated employees on behalf of employers advising the employee not to return to the premises – and stating that the police will be contacted – unless he or she has obtained prior permission to return.
Reducing Incidents Of Violence In The Workplace
By implementing proactive policies and engaging employees in the process, employers can help curtail the rising costs and incidents of violence in the workplace.