Workplace Violence and Employer Liability

by Norman D. Bates, J.D.
President, Liability Consultants, Inc.

Victim Advocate

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Workplace Violence and Employer Liability
by Norman D. Bates, J.D.

President, Liability Consultants, Inc.

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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:

• Unexplained increase in absenteeism

• Has a plan to “solve all problems”

• Repeated violations of company policies

• Behavior which is suspect of paranoia

• Noticeable decrease in attention to appearance and personal hygiene

• Depression and withdrawal

• Explosive outbursts of anger or rage without provocation

• Verbal abuse or threats of co-workers, supervisors

• Frequent, vague physical complaints

• Increase in unsolicited comments on or about firearms

• Resistance and overreaction to changes in procedures

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:

• increased staffing during high-risk periods;

• reduced store hours;

• installation of adequate lighting, drop safes and silent alarms; and the

• creation of bullet-resistant enclosures to protect clerks.(7)

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:

• allowing time off work so that a victim-employee can go to the doctor or go to court;

• approving a voluntary request for a transfer so that an abusive partner cannot find the employee-victim, or to escape an abusive co-worker;

• securing the business premises from crime by outsiders, particularly when a victim-employee is being harassed at work by an outsider; and

• requiring that the employer’s security staff enforce orders of protection and prohibit known batterers and stalkers form entering the workplace.

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:

• The type of workplace violence offender, the measures that were available; to that business, and the steps actually taken to protect people in the workplace given the type of offender.

• There may be multiple parties to share the defense table, such as a security contract agency and others.

• Know where and how to identify the applicable standards, statutes or other good and accepted business practices for that industry.

• Look for multiple sources of data about the extent of the problem, while understanding the inherent limitations of each source.

 

 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).