Legal: Workplace violence policies must be in place

The threat of workplace violence is, unfortunately, a part of life we now face on a daily basis. Remember the attorney in California who was shot outside the courthouse by a man he’d never met? The gunman was angry about a probate issue. After firing six times, he simply pocketed the gun and calmly walked away. Was there anything the attorney could have done to avoid this act of violence? Maybe not, but this is a perfect example of how such violence can occur, not just in post offices and factories, but in the heart of the judicial system. No one is immune from this issue.

Consider the following examples that have been in headlines across the country:

▪ A 21-year-old meat packing plant worker in Kansas City, Kan., brought two handguns to work and killed five co-workers before killing himself. The man’s co-workers told police they always had a hard time making sense of him, that he paced and talked to himself, and that he was bothered by recent teasing.

▪ A factory worker in Jefferson City, Mo., fatally shot three co-workers and wounded five others before turning the gun on himself. The victims were apparently chosen at random. The gunman had no prior criminal record and was described as “quiet.” He was referred to by co-workers as non-confrontational, nice and clean-looking. How many employees do you work with or employ that would fall into this category?

▪ A state worker in Jacksonville, Fla., wounded two co-workers before committing suicide. He was described as a “disgruntled employee.” In March of the same year, a disgruntled employee, worried about losing his job, shot four co-workers to death at an aircraft parts plant in South Bend, Ind. The man was described as a “lone wolf.”

▪ A truck driver in Connecticut was videotaped stealing beer from the company where he worked. Upon given the choice to resign or be fired, the worker instead drew a handgun, opened fire and moved through the warehouse of the company killing eight people and wounding two before turning the gun on himself.

Workplace violence does not only refer to homicide. Rape, sexual assault, robbery, aggravated and simple assault also fall into this category. Many times the perpetrator is a company employee, but vendors, customers, family members and significant others also account for a large percentage of perpetrators who commit violence in the workplace.

The bottom line is that we simply cannot overlook the issue of violence in the workplace. Employers must have a plan in place to prevent and effectively respond to this threat. The guidelines that follow focus attention on certain issues related to the prevention of workplace violence.

A. The statistics

According to a comprehensive survey by the U.S. Department of Justice, 1.7 million violent victimizations per year, on average, are committed against persons at work. During the survey period, 18 percent of all violent crime was committed in the work place.

Approximately 900 work-related homicides occur each year; however, the occurrence of workplace homicides actually declined from previous years by 39 percent, according to the aforementioned survey. According to data from the National Traumatic Occupational Facility Surveillance System, 9,937 workplace homicides occurred during the 13-year period from 1980-92. The attention given to the seriousness of this issue surely played a role in this decline. Of the workplace homicides, 80 percent were committed with a firearm, and males account for nearly four-fifths of the victims. The Justice Department’s survey also found that employees and co-workers (present and former) represented a higher percentage of the perpetrators, as compared to customers or clients.

The victims of violent crime tend largely to be male, with a victimization rate 56 percent higher than females. The workplace violent crime rate for whites was 25 percent higher than blacks and 59 percent higher than other races. The violent crime rate was also higher among the 20-34 year old age group.

The Justice Department’s survey reflects that workplace violence is committed by a lone offender in more than eight of every 10 incidents. When victims were asked whether they believed drugs or alcohol played a role, about one third believed the offender had either been drinking or was on drugs at the time of the act. The same survey found that, “about 1 percent of all workplace crime was committed by a current or former boyfriend, girlfriend or spouse — an intimate — of the victim.”

B. Prevention

1) Warning signs

University of California Davis’ Workplace Violence Prevention Operations Committee compiled a list of behaviors and attitudes that is a useful tool for identifying potential violent behavior. This is by no means a complete list but is a good reference point.

▪ Upset over recent event(s) [work or personal]

▪ Recent major change in behavior, demeanor, appearance

▪ Recently has withdrawn from normal activities, family, friends, co-workers

▪ Intimidating, verbally abusive, harasses or mistreats others

▪ Challenges/resists authority

▪ Blames others for problems in life or work; suspicious, holds grudges

▪ Use/abuse of drugs and/or alcohol

▪ Unwelcome obsessive romantic attention

▪ Stalking

▪ Makes threatening references to other incidents of violence

▪ Makes threats to harm self, others or property

▪ Has or is fascinated with weapons

▪ Has known history of violence

▪ Has communicated specific proposed act(s) of disruption or violence

▪ Is isolated or a loner

▪ Morally superior, self-righteous

▪ Feels entitled to special rights and that rules don’t apply to them

▪ Feels wronged, humiliated, degraded; wants revenge

▪ Feels without choices or options for action except violence

2) Make a commitment to safety

Employees look to management to provide the motivation and resources to address workplace violence. A commitment on the part of management to the safety and health of workers is essential. The National Institute for Occupational Safety and Health and the U.S. Department of Labor’s Occupational Safety and Health Administration has outlined a number of considerations employers should take into account with respect to safety in the workplace. Actions management should undertake to emphasize its commitment to workplace safety include, but are not limited to, the following:

▪ Create a policy that expresses management’s disapproval of workplace violence and incorporate the policy into the employee handbook.

▪ Take any threat of violence seriously, initiate a thorough investigation of the threat and take the appropriate corrective action.

▪ Consider requiring or offering counseling to the perpetrator as an alternative to immediate termination. The employer can maintain some level of control over the perpetrator by taking this posture as compared with firing the individual, which may create a higher level of risk.

▪ Implement a security plan and disseminate the plan to key personnel so there is a plan of action that will be followed should an occurrence arise. This “response team” should develop a plan that considers how to coordinate care for the victim(s), and provide stress debriefing for co-workers and families.

▪ Consider creating a “threat assessment team” where threats can be reported. The team should incorporate personnel from HR, security, employee assistance, unions, workers, management, and legal and public relations. The team should be charged with the responsibility to assess threats and take the necessary steps to prevent the threat from being carried out.

▪ Create procedural guidelines that employees are to follow with respect to reporting and tracking violent incidents that occur, and do not punish or discriminate against employees who report or experience violence in the workplace.

▪ Encourage employees to make suggestions with respect to how risk can be reduced, and adopt the suggestions that are appropriate. This can be done through surveys, for example. Additionally, have employees participate in routine security inspections of your facility. Environmental factors to consider include: good visibility within and outside the workplace, cash handling policies, physical separation of workers from customers or clients, good lighting, security devices (such as door detectors that alert personnel when someone enters an area, door buzzers that control access into an area, silent and personal alarms and video surveillance equipment), escort services and employee training.

▪ Create a support group, or devote a portion of new-employee training, for seasoned employees to share their experiences in an effort to educate the new employee on how to recognize and respond to emotionally-charged behavior, an assault, or other acts of violence.

▪ Make contact with other parties such as landlords, lessees, the local police department, etc., in an effort to elicit recommendations for ways to improve the security of your business.

3) Take a proactive stance

The best way to minimize liability is to reduce the amount of risk. In other words, develop a proactive policy with a goal toward avoiding the potential for violence. The best time to take this approach: the hiring process.

The interview process is the first and best opportunity to eliminate potential problem employees. Ask questions designed to discover as much as possible about a potential employee’s personal and work histories. For example: “Give me an example of a situation that occurred in your prior employment where you disagreed with management. How did you react to the decision made by management and why?” This question elicits a more interactive exchange from the applicant and will give you insight as to what behavior you can expect from them in certain situations. Similarly, ask questions that explore the information provided on a job application. The resume you have from the job applicant will indicate where they worked, their job duties and their skills.

Always perform background checks when hiring. Check all work history, military history and credit and criminal histories. If there are significant gaps in employment, determine why. Obtain references and contact them all. See if the reference contact offers information that your applicant conveniently left out of the interview process. If your business is transportation oriented, or if the potential employee will have to use a vehicle or machinery, check the applicant’s driving record. If there are red flags, ask the applicant for an explanation. You may find DUI’s or careless driving entries suggesting an emotional or substance abuse problem. Request a pre-employment drug screen, and make sure your company policy includes notification that random drug screens will be conducted, and perform them. You may also consider a psychological screen (provided you comply with the American with Disabilities Act).

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Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.