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Workplace
Violence and
Employer Liability
by
Norman D. Bates
President,
Liability Consultants, Inc.
Although workplace violence problems are not new, they are
growing in public awareness. Consequently, there are legal developments
and potential liability risks that all employers face. To understand
associated legal risks and issues, and ultimately create change
and develop solutions to problems, one must first gain an understanding
of the different types of workplace violence and the factors which
may indicate potential threats.
Types
of Workplace Violence
Workplace
violence is distinguished by four categories: disgruntled employees,
crimes by unknown assailants, displaced domestic violence, and sexual
harassment. Each presents distinctive risk factors which need to
be addressed, as well as preventive measures which should also be
considered and employed to decrease the likelihood of violent criminal
acts. Whenever a civil action is under investigation by counsel
or by an expert, categories of assailants and employer actions must
be considered.
The
Disgruntled Employee
Generally,
the perpetrator of workplace violence is an employee who either
perceives or is subjected to wrongful treatment by an employer.
Although use of any standard profile of disgruntled employees is
not without risk, research by the Workplace Violence Institute in
more than 200 cases revealed that in each instance, disgruntled
employee perpetrators exhibit multiple pre-incident indicators before
committing an act of violence.(1) The following
is a partial list:
Theories of
liability against an employer for a disgruntled employee's assaultive
behavior should be evaluated in light of what the employer could
and should have done to address the risk. The discovery process
should focus on identifying whether indicator factors were present,
whether the employer recognized them, and what steps were taken
to address potential behavior problems.
Although there
is no way to guarantee that someone who may eventually become a
"disgruntled employee" is not hired, an employer can take
steps to reduce the risk. The following is a list of some methods
that are used when individuals are hired and employed by a business.
Pre-employment
Screening
Written pre-employment
screening policies and procedures should be in place and followed
as standard practice. By not hiring potentially violent employees
in the first place, the risk of violence is minimized. Personal
and employee references are good methods for assistance with evaluating
an applicant's personality and propensity for violence. Criminal
record checks, when appropriate, are also a source to consider.
Progressive
Disciplinary Process
A written
policy should exist regarding employee discipline and actions to
be taken when instances of violence, harassment, or other inappropriate
behavior occurs. Each instance of discipline should be carefully
documented. In Herrick
v. Quality Inn Hotel(2), a hotel manager was aware that the director of security
had weapons in his hotel apartment in violation of company policy
and that the security director had been arrested for assaulting
another employee. Yet, no documentation was made of the incidents,
and the security director was even promoted. When the director threatened
to "blow the head off" of a security guard, Mr. Herrick,
the Quality Inn was held vicariously liable for the security director's
actions. The court ruled that Quality Inn was aware of, and even
ratified the security director's actions,
as he was promoted. The jury awarded Herrick $115,200. This case
exemplifies the importance of a policy requiring documentation for
each complaint and instance of abusive, violent behavior, as well
as other violations of company policy. However, once an employer
develops such a policy, it must be consistently and regularly
executed.
Smith v.
National Railroad Passenger Corporation (Amtrak)(3) also illustrates the importance of a policy requiring
the documentation of each complaint and instance of abusive, violent
behavior, and violation of company policy. In Smith,
an employee shot and destroyed his supervisor's kneecap after being
reprimanded for eating his breakfast off of the work site when he
was supposed to be on the job. The supervisor sued Amtrak for failing
to follow its own policy of progressive discipline. The employee
perpetrator had committed other acts which demonstrated a "propensity towards violence," yet these prior acts were
not recorded. A jury rendered a $3.5 million verdict in favor of
the supervisor which was upheld by the United States Court of Appeals
for the Second Circuit.
Performance
Evaluations
Regularly
scheduled evaluations should be conducted. When negative evaluations
occur, they should include written measures to rectify problems,
and deadlines should be prescheduled for follow-up reviews. Policies
and procedures should require employers and employees to sign documentation
acknowledging when negative evaluations, or even a few negative
comments, are received.
Employee
Assistance Programs
Policies and
programs which deal with drug and alcohol abuse should be organized.
Counseling referrals for marital problems, gambling, or other issues
should also be available. Seminars should be offered which teach
employees about stress management and reduction. Training and counseling
programs are generally recognized as among the best ways to prevent
violence in the workplace.
Perception
Issues
Policies and
procedures should be implemented that enable human resources departments
to prevent or surface employee perceptions of inequities. Answers
to a recent Northwestern National Life study indicate that creating
a supportive and harmonious work environment, encouraging teamwork
and supportiveness among coworkers, and allowing employees a sufficient
level of control over how they do their work reduce feelings of
isolation, rage, and hostility, which ultimately lead to on-the-job
violent behaviors.
Under state
and federal law, employers have a legal duty to maintain a safe
workplace. The Occupational Safety and Health Administration (OSHA)
requires employers to provide "a safe and healthful working
environment." Other OSHA regulations have been developed that
identify specific measures or steps that must be in place for "late
night retail" and healthcare environments.
States may
impose even stricter statutory requirements for safe workplaces
than the federal government. A California law requires all hospitals
to institute violence prevention plans. This includes providing
training for emergency room personnel to identify and deal with
potentially violent people. The law also requires that all instances
of on-site assault and battery be reported to the local police within
72 hours.(5)
Employers
may be held directly liable for negligently hiring,
training, supervising, or retaining violent employees, and for authorizing
or ratifying an employee's violent behavior. Additionally, employers
may be held liable under the doctrine of respondeat superior for crimes and other acts committed by employees. This
vicarious liability occurs when an employee was acting
within the course and scope of employment when an injury occurs.
That is, the employer may be held responsible for acts of an employee
even if the employer is not directly at fault, and the employer
does not need to sanction the employee's wrongful conduct in order
to be held liable.
Crimes
by Unknown Assailants
The second
type of workplace violence involves crimes which are committed by
a person other than an employee or an employer-an unknown assailant-at
a victim's place of employment. Again, employers have a duty, imposed
by state and federal laws, to provide a safe workplace for employees.
Robberies, rapes, assaults, batteries, abductions, and homicides
occur at all types of businesses, and employers can be held civilly
liable for these crimes.
While employer
liability for workplace crimes by unknown assailants is often difficult
to sustain, practitioners should be familiar with the pertinent
legal theories. In her article "Employer Liability for Workplace
Violence" on page 17, Michele Gagnon reviews the legal theories
that may come into play when an unknown assailant commits an act
of violence in the workplace.
Generally,
these cases fall into two categories: cases where a "special
relationship" exists between an employer and the injured party,
and cases where liability is imposed due to an employer's status
as a premises owner. A "special relationship" will be
found to exist when (1) an employer has actual knowledge of a known
danger to a third party, and (2) the employer knows of an identified
victim, as opposed to mere generalized threats. If both conditions
are met, and the employer fails to warn the specifically identified
victim, the employer may be found liable for failing to warn that
victim. Similarly, in cases where the employer is also the owner
of the premises on which a criminal act is committed, the employer
may be found liable for the resulting damages when he or she is
aware of a specific, known danger, and fails to warn of the foreseeable
danger.(6) Because of the foreseeability
requirements in premises cases, a business' prior criminal history
typically controls whether an employer/premises owner will be found
liable for the criminal acts of unknown assailants.
The nature
of certain industries, such as the retail and hospitality industries,
often serves to enhance the likelihood that violence could occur.
These businesses are often open very late or 24 hours per day, and
may have just one clerk on duty with minimal, if any, security measures
in place. For instance, restaurants, bars, and hotels rely on public
access as a necessary component of doing business, and consequently
there is often very little access control to a site. Convenience
stores and 24-hour gas stations are also popular targets for robberies
or other thefts that could escalate into violence.
Even in these
higher risk industries, employers can take steps to protect their
employees from violence by unknown assailants. OSHA recommends the
following measures for businesses that are open late at night:
All employers
should consider other safety features that may reduce
criminal
acts by outsiders. Such features might include security
fences,
adequate lighting in parking lots and other areas of the
workplace
where employees might be vulnerable, security guards, and
alarms
for employees who work alone or in remote or high-crime
areas.
Displaced
Domestic Violence
The third
type of workplace violence involves victims of domestic violence
who aren't able to escape their batterers by going to work. Seventy-four
percent of employed women who suffer from domestic violence are
battered and harassed at work, either by telephone or in person.(8) When domestic violence spills over into the workplace,
the safety of the targeted victim is not an employer's only concern.
The safety of other employees is in jeopardy as well. Abusers will
injure, and even kill, innocent and uninvolved people who try to
obstruct or impede the path to an intended victim. In their article
"Stalking and Domestic Violence in the Workplace" on page
12, Karen Dempsey and Trudy Gregorie detail the impact stalking
and domestic violence have on the workplace, and highlight the civil
remedies available to the victims of these crimes.
There are
several things that employers can do for employees who are victims
of domestic abuse to help them deal with some of their problems
and concerns. Appropriate employer responses to a victim-employee
might include:
In every instance,
employers should take reasonable steps to address, prevent or stop
problems just as soon as they know of them. Taking such steps may
reduce the likelihood that violence related to an employee's domestic
relationship will spill over into the workplace, and they may also
reduce an employer's liability should a violent incident occur.
Sexual
Harassment
Sexual harassment
in the workplace, the fourth area of workplace violence, may involve
two or more co-workers, as well as superiors and subordinates. It
is important, though, who the harasser is, as this plays a role
in the liability of the employer. When the sexual harassment rises
to the level of sexual assault or rape, the liability claim may
focus on the negligent hiring, negligent supervision, negligent
training or negligent retention of the offender. Developing these
theories of liability will require a focus on the underlying deficiencies
in the human resources program.
Workplace
violence constituting sexual harassment may violate federal or state
anti-discrimination laws. For example, Title VII of the Civil Rights
Act of 1994 prohibits sexual harassment as well as other forms of
discrimination in the workplace.(9) Title
IX of the Education Amendments of 1972 prohibits sexual harassment
in schools, including sexual harassment of school employees.(10) Most states have anti-discrimination laws that similarly
prohibit sexual harassment and sex discrimination.
In general,
an employer may be liable for sexual harassment if supervisors or
other high-level employees make promotions, job security, or other
benefits of employment contingent on sexual favors. An employer
may also be liable if he or she knew or should have known about
a sexually hostile work environment so severe or pervasive that
it interferes with an individual's work performance, yet failed
to take any action to stop the harassment. Again, employers should
take reasonable steps to address, prevent, or stop such harassing
behavior as soon as it comes to their attention.
Legal
Issues: Theories and Problems
The following
are the most common ways employees and others have brought suits
against their employers after being victimized at work, and
some of the challenges employees face when filing such suits.
The
Workers' Compensation Bar to Claims Against Employers
As a general
rule, employees injured on the job are limited to the workers' compensation
system to recover for injuries and lost wages. As a result, injured
employees are in fact barred from suing their employer in tort.
Even when the injury is caused by a criminal assault, such as rape,
the employee cannot file a lawsuit based on the negligence of the
employer. This doctrine is known as the workers' compensation bar,
since the claimant is barred from tort recovery and may only seek
damages pursuant to the state's workers' compensation system.
There are
exceptions to this rule, the most common arising in franchiser/franchisee business
relationships,
when gross negligence is found, or if the employer has engaged in
intentional misconduct (e.g., false arrest, slander, etc.). In the
franchisee/franchiser relationship, a typical case involves a situation
where a franchisee's employee is assaulted by a third party and,
although barred from suing the franchisee, is not prohibited from
bringing a separate action against the parent company franchiser.
For example, a clerk working in a convenience store is stabbed during
an armed robbery. Under the workers' compensation law, the clerk
cannot sue the store owner/franchisee. However, the clerk can sue
the parent corporation in premises security law. The success of
the suit against the parent company will depend upon whether that
corporation exercised sufficient control over the day-to-day operation
of the store and is, in fact, negligent.
Claims made
for gross negligence can be brought directly against
the employer in jurisdictions where allowed (e.g., Texas and Georgia).
The exclusivity provision of the workers' compensation statute will
not prevent civil actions based upon acts of misconduct (e.g., assault)
by the employer and will also enable the employee to bring an action
directly against the employer. While gross negligence is a very difficult term to define, it is often described
as a failure to exercise almost any care or, in the face of a responsibility,
a conscious disregard for one's duty to comply with certain standards.
Gross negligence is tantamount to conscious disregard for even minimally
accepted practices. An example of this concept would be a parking
facility that did not provide any lighting for nighttime use, or
provided lighting so poorly designed that it would be extremely
difficult to see without the aid of a flashlight. Intentional misconduct is generally easier to establish because the tortfeasor
has directly caused the injury through his or her own act. The employer
who sexually assaults the employee would be guilty of such misconduct.
Although these types of cases are less common than inadequate security
claims, the plaintiff employee will frequently have less difficulty
establishing his or her case.
Third-party
claims are brought
when the employee is able to bring a separate action against a third
person, usually another company, that was providing a service or
that sold a product to the employer of the injured person. For example,
a nurse raped in the parking lot of a hospital may be barred from
suing the hospital because of the workers' compensation bar. She
may, however, be able to sue the security contract company that
failed to properly patrol the facility when they were contracted
to do so. A similar result could occur if an alarm monitoring company
failed to respond to a holdup alarm, and the clerk was consequently
shot.
Generally,
customers and guests have a right to sue a business owner directly
when they have been injured on the business owner's property. Sometimes
suits are also brought against third parties, such as security contract
companies hired by a business owner to provide security at a work
site. An employee of a business may sue the contract security company
if negligent actions of security personnel were a direct cause of
the employee's victimization.
The "status"
of the employee at the time of the assault can be a crucial matter
in determining whether the workers' compensation exclusivity bar
applies to a claim. The "status" of the employee refers
to what the employee was doing when he or she was assaulted. In
Small v. McKennan
Hospital,(11) the victim was a hospital nurse and her mother worked
at the same hospital. After her shift, the victim went home and
got a sweater to bring to her mother, who was on-duty. After she
left the hospital the second time, she was kidnaped, raped, and
murdered. Her status as a visitor prevented the defendant from being
able to apply the workers' compensation bar and throw out her estate's
claim. Trial counsel should investigate exactly what the employee
was doing at the time of the crime to determine whether a tort claim
can be brought.
Indemnification
Agreements
Employers
may also be indirectly liable through indemnification agreements.
By signing such an agreement, a business agrees to cover another
entity under its insurance policy, should it be sued for negligence.
If a security company has a business agreement to an indemnification
clause, the business may then be financially responsible when the
security company allows or causes the business' employees to become
victims of criminal acts.
Negligent
Hiring and Negligent Retention
Employees
have been successful in suits that allege that employers were negligent
in either hiring or retaining another employee who, subsequent to
being hired, commits a violent act. Negligent hiring occurs when an employer knew, or should have known, that
an applicant was not "fit" for a job, but hires the person
anyway. Certain positions have a greater inherent level of risk
than others. For example, a maintenance person with access to an
office building's entire set of master keys poses a greater risk
than a maintenance assistant who will not have any access to keys.
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. That is, if there is information available
to the employer that the employer simply failed to obtain, liability
may be placed on the employer. 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.
Negligent
retention occurs
when an employer becomes aware, or should become aware, of an employee's
unsuitability, yet fails to take any action. This exemplifies the
importance of having policies and procedures in place to maintain
adequate supervision. When any type of negative or violent incident
occurs, it should be documented, and the offending employee should
be disciplined. Copies of incident reports, disciplinary measures
taken, and other notes should be kept in the employee's file and
disseminated to appropriate parties according to policy. In some
instances, it may not be in the employer's best interest to retain
the employee at
all.
A final legal
theory, negligent entrustment, may also be available. Negligent entrustrnent typically involves security guard
firms when an employee is improperly given a weapon, and the weapon
is used to injure a party. Generally, this involves employers providing
weapons to security personnel who have no experience or training
with such weapons, and the employer's failure to train them in proper
uses.
Conclusion
Attorneys
handling claims against or on behalf of employers in the workplace
violence context should consider the following:
Norman
D. Bates, Esq., is the President of Liability Consultants, Inc.
in Bolton, MA. He provides consulting services to private industry
on security and liability problems and is an expert witness for
both plaintiff and defense firms throughout the US. Mr. Bates can
be contacted at 591 Sugar Road, Bolton, MA 01776, (978) 779-9906.
Email: Nbates@liabilityconsultants.com; Internet site: www.liabilityconsultants.com
1. "Rise
In Workplace Violence Expected to Increase," Jurg W. Mattman,
CPP, Executive Director of Workplace Violence Research Institutes,
Safe Workplace, Volume 2, Issue 1, Spring 1994.
2. 24 Cal.
Rptr. 2d 203 (Cal. App. 2 Dist. 1993).
3. 856 F.
2d 467 (2nd Cir. 1988)
4. 29 U.S.C.
1900 5(a)(l).
5. "Danger
Zone": Your Office, Tom Dunkel, Working Woman, August 1994.
6. See Jurg
W. Mattman, CPP and Steve Kaufer, CPP, "The Complete Workplace
Violence Prevention Manual, Volume 2," Chapter 10, pages 2-5
(July 1995).
7. See Higgins,
Michael, "Stop 'n' Shop Crime," ABA Journal, page 32 (May
1999).
8. Caroline
Wo1f Harlow, "Female Victims of Crime," Bureau of Justice
Statistics, 1991, as cited in National Coalition Against Domestic
Violence Bulletin.
9. 42 U.S.C.
20003e et seq. (l994)(as amended).
10. 20 U.S.C.
1681-88 (1994).
11. 403 N.W
2nd 410 (S.D. 1987). |