Preventing Workplace Violence

November 13, 2009

Excerpted from Nebraska Employment Law Letter written by attorneys at the law firm of Erickson & Sederstrom, P.C.

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It's universally agreed -- we're an increasingly violent society. The U.S. Department of Justice has reported that during each year of the 1990s, approximately one million violent crimes were committed in the workplace and two million employees were physically attacked, threatened, or harassed at work.

According to the Bureau of Labor Statistics, workplace homicides fell by 18% in 2008. Overall, the 2008 preliminary workplace homicide  count (517 workplace homicides) represents a decline of 52% from the high of 1,080 homicides reported in 1994.

The Workplace Violence Research Institute estimates that each day, 16,400 workers are threatened, 723 employees are attacked, and 43,800 employees are harassed.Even more disturbing is the fact that approximately 600 work-related homicides occur every year. And estimates indicate that workplace violence costs employers $36 billion each year in lost productivity, loss of life, injuries, employee counseling, legal fees, and court awards.

When an employee is killed or injured because of workplace violence, his employer usually faces a lawsuit. That risk begs the question, how can employers reduce the potential for violence at their workplaces and limit their liability?

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including employee privacy, hiring, discipline, and documentation, and workplace violence

What are the legal risks?
Some of the legal issues you could face following an incident of workplace violence include:

• negligent hiring — failing to properly screen applicants, which results in hiring someone with a history of violence or criminal behavior;
• negligent retention — keeping an employee on the job after becoming aware of his unsuitability;
• negligent supervision — failing to provide the necessary monitoring and oversight to ensure that employees perform their duties properly; and
• inadequate security — not providing security measures that address a potential threat.

Following are two practical steps you can take to address those important concerns.

An Employer's Guide to Workplace Violence, Terrorism, and Natural Disasters

Step 1: Applicant screening
Your employment application process is the first step in screening people. Design your hiring procedures to identify and eliminate potential problems. Require all potential employees to complete job applications. Once you receive an application, verify the applicant's educational background, contact his references and previous employers, confirm his previous jobs and job titles, and verify his employment dates.

Why? An applicant with a less-than-appealing employment history may attempt to deceive you by eliminating certain jobs or his reasons for leaving or expanding his dates of employment. A red flag should be raised if you find out someone is willing to lie or misrepresent his qualifications.

You should require every applicant to submit to a mandatory drug test. In addition, perform credit, driver's license, and public-filing checks and most important, criminal background investigations. Many acts of violence in the workplace and their resulting liability could be prevented if employers simply performed a background check to determine whether an applicant has shown any tendencies toward violence.

All applicants also should have several in-person interviews, regardless of the job they have applied for. Face-to-face meetings during which you can ask open-ended questions provide an additional opportunity to verify the information on someone's application. People who lie often have trouble recalling the details of their fictional history.

Last but not least, you should contact your legal counsel to ensure that you're doing everything necessary to screen applicants appropriately and that you have all the necessary safeguards in place.

State-by-state comparision of 50 Employment Laws in 50 States, including guns in the workplace laws, drug testing, and background checks

Step 2: Prevention program
Avoiding and preventing workplace violence doesn't end with the screening and hiring process. Through periodic training, every employee must be familiarized with and reminded of your company policies, rules, and procedures and the consequences of failing to adhere to them. At a minimum, your policies and procedures should be contained in an employee handbook, which should be reviewed and updated annually.

One of the most important elements in any prevention program is a zero-tolerance policy for threats, harassment, intimidation, and possession of weapons. A well-drafted employee handbook that spells out your rules and procedures will allow you to take a proactive approach toward reducing inappropriate behavior in the workplace.

Employers should clearly and unambiguously define what constitutes unacceptable behavior. If drafted correctly, the rules and procedures in your employee handbook often will provide legal support for firing someone.

Once you have disseminated a written zero-tolerance policy to your workforce, designate someone to whom your employees may report apparent violations without fear of reprisal. Consider creating a specific threat-assessment position or department or an anonymous hot line.

Those types of mechanisms will allow management to respond to a reported incident by performing threat assessments and creating crisis response plans. An employer's failure to take prompt and appropriate remedial measures in response to a threat or an actual act of violence in the workplace may result in later liability.

Audit your policies and practices with the Employment Practices Self-Audit Workbook

Bottom line
There are no perfect solutions for addressing workplace violence and the liability that accompanies it. Although it may seem daunting, developing and implementing an effective screening process and prevention program can address not only violence in the workplace but also unnecessary legal concerns.

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Copyright 2009 M. Lee Smith Publishers LLC. NEBRASKA EMPLOYMENT LAW LETTER. This article is an excerpt from NEBRASKA EMPLOYMENT LAW LETTER.NEBRASKA EMPLOYMENT LAW LETTER should not be construed as legal advice or legal opinion as to any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.

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