Workplace violence is a growing hazard for both employers and employees. Unfortunately, few employers have adequate policies in place to deal with this problem. As a result, many employers risk liability in the event violence occurs at their workplace. In fact, workplace violence lawsuits have resulted in millions of dollars in settlements and judgments. To maintain a safe workplace and minimize liability, employers must take steps to prevent and respond appropriately to workplace violence.
As with other areas of employment law, there is no magical panacea of workplace policies and procedures that will eliminate workplace violence and an employer’s potential liability. However, liability can be significantly reduced if employers adopt and enforce comprehensive antiviolence policies and conduct training and education tailored to their particular type of employees and workplace.
How are employers held liable for workplace violence?
Theories of Liability
Two key theories of legal liability include (1) an administrative action by OSHA, and (2) a private tort claim brought by the victim (either an employee or a third party).
The OSHA "General Duty" Clause
Section 5(a) of the Occupational Safety and Health Act, the “general duty” clause, requires that each employer “shall furnish to each of [its] employees a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees….” 29 U.S.C. § 654(a). The general duty clause does not create a private cause of action, and can only be enforced by OSHA.
To prove a violation of the general duty clause, the Secretary of Labor must show that: (1) the employer failed to render its workplace free of a hazard; (2) the hazard was “recognized”; and (3) the hazard caused or was likely to cause death or serious physical harm. The standard for liability is not one of respondeat superior (where an employer is liable for the actions of employees performed within the course of their employment) or strict liability, but rather, requires the employer to protect against preventable and foreseeable dangers to employees in the workplace.
There is a safe harbor for “unpreventable employee misconduct,” under which employers will not be found liable for employee misconduct, if the employer has (1) established work rules designed to prevent the violation, (2) adequately communicated these rules to its employees, (3) taken steps to discover violations, and (4) effectively enforced the rules when violations have been discovered. Critically, this defense requires much more than merely implementing comprehensive antiviolence policies and procedures, and instead mandates active enforcement.
Tort Claims by the Victim
Any person victimized by violence in the workplace may potentially pursue litigation against an employer, including employees or third parties such as clients or vendors. Most frequently, such claims involve an allegation that the employer knew or should have known of its employee’s propensity to endanger coworkers or the public, but failed to take reasonable steps to prevent the act of violence from occurring.
- Negligent Hiring/Negligent Retention/Negligent Supervision
One common claim asserted by victims of workplace violence is an allegation that the employer violated its common law duty to exercise reasonable care when hiring, retaining, or supervising employees who may pose a threat to other employees or the public. To prove an action for negligent hiring, supervision, or retention of an employee, the plaintiff (who may be a coworker, supervisor, or a third party) must establish the following: (1) the offending employee committed a common law tort against the plaintiff such as assault; (2) the employer owed the plaintiff a legal duty to hire, retain, or supervise competent employees; (3) the employer breached that duty; and (4) the plaintiff’s injury was brought about by, and was a foreseeable consequence of, the employer’s failure to use ordinary care in hiring, retaining, or supervising the offending employee.
- Intentional Torts
An employer may be vicariously liable under a respondeat superior theory for an assault or other intentional tort committed by its employee if the employee was acting within the course and scope of the employment. However, employers may also be held liable in some circumstances when an employee acts outside the course and scope of the employment.
The best defense to claims stemming from workplace violence
Adopt Policies and Provide Training Regarding Prevention of Workplace Violence
It is imperative for employers to adopt and enforce policies designed to eliminate or, at the very least, minimize inappropriate conduct in the workplace. For instance, the presence and enforcement of anti-discrimination and harassment policies helps shield employers from liability for state and federal discrimination claims. Antiviolence policies likewise serve as an important defense to OSHA and private lawsuits.
- Model Policies and Procedures
OSHA and other federal agencies have set forth various factors that should be considered in promulgating and implementing workplace antiviolence policies. The following are key elements that should be included in any effective antiviolence policy:
- Zero-tolerance for workplace violence, and verbal and nonverbal threats of violence.
- Prohibit retaliation against an employee who reports workplace violence.
- Encourage employees to promptly report incidents and to suggest specific ways to reduce or eliminate risks.
- Create a response action plan for violent situations, including availability of assistance, response to alarm systems, and communication procedures.
- Develop a plan of action for dealing with hostile persons, including employees and third parties, such as customers and vendors.
- Create specific policies and procedures for reporting and recordkeeping.
Finally, employers are strongly encouraged to provide general training to all employees and specialized training to supervisors, management, and security personnel regarding the content of the antiviolence policy. Such training should include guidance regarding the appropriate response in situations where an employee or manager witnesses or otherwise learns that an act or threat of violence has occurred.
The unfortunate reality is that we live in a world where workplace violence has increased. Employers must respond to this reality by adopting effective policies prohibiting violence and providing all employees with the training necessary to handle such occurrences. Failure to do so may result in liability for violence that occurs in the workplace, as well as potential physical harm to employees or third parties, damaged morale, and negative public image in situations where an employer fails to take reasonable action to ensure the safety of its employees.