It seems like every month there is a news story involving a disgruntled employee or former employee committing some sort of violent act at work. Such senseless acts can result in drastic ramifications for employees, families, communities and businesses. Imagine the following scenario.
Two coworkers, a man and woman, meet at work and eventually begin a romantic relationship. Putting aside the potential sexual harassment implications of a supervisor engaging in a romantic relationship with a subordinate, the woman eventually terminates the relationship on seemingly amicable terms. Several months later, while the two continue to work together on a daily basis, the woman happily announces she is engaged to be married to a different man. Then, suddenly and without any prior warning, the male supervisor, exactly one year from the date of their breakup, brings a gun to their office. He methodically walks up to his former girlfriend and shoots her, killing her instantly at her desk. He then turns the gun on himself and dies later the same day.
As horrific as these facts are, it is unfortunately not a hypothetical case. This article cannot possibly consider all of the human ramifications of this situation. The trauma coworkers witnessed, the impact on families and the loss of a sense of being safe at work are real and obvious issues. From a legal perspective, however, an employer can face several potential sources of liability in an employee violence situation. Those can include:
A wrongful death/ intentional tort action on behalf of the slain employee;
A claim for negligent hiring or retention of the perpetrator;
A workers’ compensation claim (depending upon the jurisdiction) based upon the deaths and,
A potential OSHA charge based upon failure to provide a safe workplace.
The employer in this type of scenario quite possibly did nothing wrong and had no idea any danger even existed. Nevertheless, as this type of violence proliferates, employers are wise to take steps to minimize not only the possibility of such an event occurring, but also to limit potential exposure in the event such an act does occur. Steps employers can consider include:
Adopt written policies prohibiting guns or other weapons within the employer’s premises. Some states permit employees to have firearms in personal vehicles even in company parking lots. However, employers can normally prohibit employees from bringing firearms into the actual facility.
Focus on developing a culture of fairness. Ice Miller often works with employers to create positive workplaces where employees feel safe and valued and are treated fairly. Part of developing a culture of fairness includes adopting and enforcing non-harassment policies and thinking about the human impact when an employment relationship must be terminated.
React promptly when faced with an employee situation that indicates mental instability. In some cases, employers can look back and see that there were signs of instability in an employee’s past. Although the Americans with Disabilities Act establishes procedures for dealing with such a situation, employers can carefully act within their ADA rights. In some circumstances, this can include confronting employees with apparent mental instability and possibly requiring psychological fitness for duty examinations.
Consider increased security measures. Although not necessarily appropriate in all environments, employers might consider security checkpoints, metal detectors and even installation of security cameras to monitor the workplace. A certain level of transparency may be advisable to maintain employee morale, but security measures can enable an employer to discover a potential situation before a tragedy occurs.
Consider the potential availability of commercial insurance policies that might include coverage for employee violence.
The overriding theme of these steps is to do everything an employer can reasonably do to prevent or minimize the likelihood of a violent situation. However, employers also have a responsibility to their shareholders and employees to protect their businesses. These measures are not necessarily expensive, but can be incredibly valuable.
Unfortunately, there are no simple solutions to the issue of societal and employee violence, but these relatively minimal ideas can be a step in the right direction.
For more information, contact Bill Barath or another member of our Labor, Employment and Immigration Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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