Consultants, attorneys and others have publicized some alarming information concerning the extent of violence in the nation’s workplaces. Yet, there is often a vast disparity in the statistics covering seemingly identical types of violence, depending on the author and his or her sources of data. Consequently, observations and conclusions as to the nature and extent of workplace violence vary significantly. Additionally, some generalized statements made about workplace violence, not based on statistical data, convey somewhat confusing and misleading conclusions.
This article attempts to reconcile the varying statistical information as well as provide insight into whether some commonly-held views about workplace violence are fact, fiction, or possess elements of both.
THE DEFINITIONAL ISSUE
Much confusion in the analysis of data and conclusions drawn stems from varying definitions of “workplace violence". For example, the National Institute for Occupational Safety and Health (NIOSH) sets forth one of the more commonly-used definitions of “workplace violence:”
Any physical assault, threatening behavior, or verbal abuse occurring in the work setting. It includes, but is not limited to, beatings, stabbings, suicides, shootings, rapes, near suicides, psychological traumas such as threats, obscene phone calls, an intimidating presence, and harassment of any nature such as being followed, sworn at, or shouted at.
The Workplace Violence Research Institute similarly defines the phenomenon in broad “abuse-related” terms:
Any act against an employee that creates a hostile work environment and negatively affects the employee, either physically or psychologically. These acts include all types of physical or verbal assaults, threats, coercion, intimidation, and all forms of harassment.
The U. S. Bureau of Justice Statistics uses a substantially different definition in its December 2001 Special Report, “National Crime Victimization Survey: Violence in the Workplace, 1993 through 1999”. Its definition of workplace violence includes “rape, sexual assault, homicide, robbery, aggravated and simple assaults.” The NCV Survey, which is the most recent long-term study of the phenomenon, thereby equates workplace violence with violent crime.
The U.S. Department of Labor’s Bureau of Labor Statistics (BLS), in its October 27, 2006 “Survey of Workplace Violence Prevention, 2005,” defines workplace violence as “violent acts directed towards a person at work or on duty (i.e., physical assaults, threats of assault, harassment, intimidation or bullying).” It then classifies workplace violence within these four situational contexts:
· Criminal – when the perpetrator has no legitimate relationship to the business or its employees and is usually committing a crime in conjunction with the violence (e.g., robbery, shoplifting, or trespassing);
· Customer or Client – when the perpetrator has a legitimate relationship with the business and becomes violent while being served by the business (e.g., customers, clients, patients, students, inmates, or any other group to which the business provides services);
· Co-Worker – when the perpetrator is an employee, past employee of the business, or contractor who works as a temporary employee of the business and who attacks or threatens another employee; and
· Domestic Violence – when the perpetrator, who has no legitimate relationship to the business, but has a personal relationship with the intended victim, threatens or assaults the intended victim at the workplace (e.g., family member, boyfriend, or girlfriend.)
The conclusions drawn by various observers and writers are in large part dependent on whether they have adopted a broad or more restrictive definition of “workplace violence.” With this in mind, the focus now turns to oft-heard statements about workplace violence and the extent to which they reflect fact or fiction.
FACT OR FICTION? Workplace Violence is Essentially a Phenomenon Occurring Between Employees and Non-Employee Third Parties, Rather Than Actions between Co-Workers.
Answer: Part Fact and Part Fiction
If workplace violence is defined and measured in terms of physical types of violent crime, there is no question that employees are more likely to be victimized in their workplaces by third parties or strangers than by co-workers. The NCV Survey found that workplace violence victims were violated by strangers in 56 percent of the violent crime occurrences reported. The same study found that co-workers and casual acquaintances accounted for only 39 4 percent of violent workplace incidents. Further, over time, workplace violence accounts for roughly 18 percent of all violent crime committed in the United States each year.
Using a broader “abuse-related” definition, the Workplace Violence Research Institute estimates that each day 17,400 employees are subjected to verbal threats, and 43,800 are harassed in various unwelcome ways. On a yearly basis, that equates to 5,986,000 verbal threats and 11,350,770 incidents of harassment. Given the magnitude of these numbers, and the high probability that most were delivered verbally, it is most likely that the vast majority of these occurrences are between co-workers in the workplace, as opposed to threats and harassment directed to workers from parties not affiliated with the workplace.
As to workplace homicide, the NCV Survey found that, from 1993 to 1999, 84 percent of all workplace homicides of employees were committed by assailants who were strangers and unknown to the victim. Only 7 percent of workplace homicides occurred between co-workers or between an employee and a former employee co-worker.
Thus, if the definitions of NIOSH and the Workplace Violence Research Institute are adopted, it appears that workplace violence is much more of a phenomenon between employees and co-workers in the workplace. Utilizing the crime-related NCV Survey definition, however, criminal violence in the workplace is much more of a phenomenon between third party outsiders and employees within the workplace.
FACT OR FICTION? Homicide within the Workplace is an Increasingly Wide- Spread, Major and Costly Problem.
Answer: Part Fact and Part Fiction
An analysis of workplace homicides undertaken by the American Journal of Industrial Medicine for the decade spanning 1992 through 2001 found that workplace fatalities cost United States employers an average of more than $600,000,000 per year, and nearly $6.5 billion over the ten-year period. Research conducted by the Brady Center to Prevent Gun Violence estimates the range of cost for a workplace homicide to be $250,000 to $1,000,000. There is no doubt therefore, that workplace homicides are extremely costly in dollar terms, even absent considerations of costs resulting from disruption and emotional drain.
According to the NCV Survey, work-related homicides decreased 39 percent from 1,074 in 1993 to 651 in 1999. Between the years 2000 and 2005, other statistics indicate that the annual number of homicides in the workplace decreased from 677 to 564. While there can be no dispute that the phenomenon of workplace homicides is a costly problem for employers, the encouraging news is that statistics for the period 1993 to 2005 reflect that the numbers of workplace homicides have been virtually cut in half.
FACT OR FICTION? Domestic Disputes Are the Cause of a Substantial Percentage of Homicides Occurring in the Workplace.
Historically, homicide has been the leading cause of on-the-job deaths for women and the second leading cause of workplace deaths for men. Yet, in terms of all workplace related deaths, homicides represent a small percentage.
According to the NCV Survey, only 3 percent of workplace homicides resulted from disputes between an employee and an intimate – ex-spouse, boyfriend, wife, or significant other. The average number of such homicides from 1993 to 1999 was 28. Nearly all homicides during that period were the result of boyfriends or husbands murdering their girlfriends or spouses, respectively, in the workplace.
FACT OR FICTION? Workplace Violence Costs an Estimated $36 Billion Per Year in Lost Productivity, Work Disruptions, Employee Turnover, Litigation, and Other Related Losses.
Answer: Part Fact and Part Fiction
The $36 billion figure is based on findings of the Workplace Research Institute study conducted in 1995. As noted earlier, that study relied on a very broad definition of workplace violence. Although no corresponding studies have since been undertaken, this figure is unquestionably substantially higher in 2006. The Brady Center research stated that costs linked to workplace violence ballooned from $4.2 billion in 1992 to $120 billion in 2002. One conclusion is clear and unmistakable: The cost of workplace violence is staggering.
FACT OR FICTION? The Incidence of Violent Crime in the Workplace Differs Substantially by Occupation.
By way of overview, the 2005 BLS Survey found that in the private sector, goodsproducing industries had a higher percentage of co-worker workplace violence than serviceproducing industries. Service-producing industries showed much higher percentages of criminal, customer and domestic violence than goods-producing industries.
The NCV Survey, using a definition based on non-fatal violent crimes, found a wide disparity in workplace crime victimization depending on occupation. While the overall average rate for all occupations was found to be 12.6 incidents per 1,000 workers, police officers experienced the highest level of workplace violence victimization – 260.8 per 1,000 officers. Over the period studied, police officers experienced 11.2 percent of the total of all incidents of non-verbal workplace violence reported. Other occupations experiencing high rates of violence victimization were the following: taxi drivers, at 128.3 per 1,000; bartenders, at 81.6 per 1,000; special education teachers, at 68.4 per 1,000; mental health professionals, at 68.2 per 1,000; junior high school teachers, at 54.2 per 1,000; convenience store workers, at 59.9 per 1,000 and RNs at 21.9 per 1,000. On the other end of the spectrum were college and university professors, who had the lowest incidence – 1.6 per 1,000 of such educators.
EVALUATION OF SOME FREQUENT NON-STATISTICAL CONCLUSORY STATEMENTS MADE ABOUT WORKPLACE VIOLENCE
Apart from the statistical and definitional issues, broad assertions have been made concerning the rights of employees injured as a result of workplace violence and the liabilities of employers for such incidents. Some of these are overstated and some are outright myths.
FACT OR FICTION? Employees Injured by Fellow Employees While on the Job Can Sue Their Employers for Negligent Hiring, Retention and/or Other Negligence Theories and Receive Damages for Injuries Sustained by Workplace Violence.
Answer: Mostly fiction
The reality is that for most employees injured as a result of workplace violence, their sole and exclusive remedy is provided through their state’s workers compensation system. Thus, in virtually all states, if an injury to an employee occurs “in the course of” or “arises out of” his/her employment, the remedy for the injury is limited to that set forth in their state’s workers compensation statute. In most states, even an employer’s conduct which amounts to gross negligence leading to an employee’s injury will not qualify for an exception to the exclusivity rule. Accordingly, negligence lawsuits against employers under such circumstances have little chance of survival or success.
The only exception to this “exclusive remedy” rule in many states arises where the facts show that the employer engaged in conduct deemed to be an “intentional tort.” In effect, this is an intentional act by the employer which subjects the employee to harm and injury, and fortunately these situations are rare. On the other hand, in situations where the employee sustains injury by an assault from another employee, the assaulted injured employee often asserts that the assailant had previously engaged in repeated instances of violent conduct in the workplace, or had shown the proclivity to engage in such violent conduct. The injured employee then further argues that the employer should be “vicariously liable” for the intentional assault of the other employee, since the employer knew, or should have known, of the assailing employee’s predisposition toward violence. These cases are very fact-specific and success is rare. Courts are generally not receptive to employees’ attempts to characterize negligent acts by their employers as intentional torts, nor are courts generally predisposed to allow employees to circumvent the state’s workers compensation statute.
FACT OR FICTION? Federal Law Requires, As Part of an Employer’s Obligation to Provide a Safe Workplace, That an Employer is Legally Responsible for All Acts of Violence Which Occur in its Workplace.
In fact, there are no federal statutes which specifically address workplace violence nor are there federal statutes which create standards to which all employers are required to comply. As a result, any legal issues involving workplace violence fall at the fringes, or in the “penumbras,” of other federal and state statutory schemes. Additionally, there are no federally-mandated legal remedies directed specifically to acts of workplace violence. Any remedies that are available to employees injured by workplace violence are an outgrowth of (1) workers compensation statutes, as discussed above; (2) civil rights statutes where factually applicable; or (3) from requirements under more general federal and state enactments that require that employers provide “safe” workplaces.
As to the third point, OSHA imposes responsibilities on covered employers, pursuant to its “General Duty” clause, to “provide a workplace free from serious recognized hazards and a [specific duty] to comply with standards, rules and regulations issued under the OSH Act.” An employer is obligated to furnish each employee a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. For OSHA’s General Duty clause to apply, and thereby generate an obligation on the employer to prevent and abate violence, the violence must be a “recognized hazard.” The point at which violence becomes a “recognized hazard” within a workplace sufficient to invoke the General Duty clause depends on whether the violence is foreseeable, and whether the employer is capable of controlling it. If it cannot be foreseen or controlled, it cannot be deemed a “recognized hazard.”
OSHA appears to step lightly around these issues, taking an ambivalent position with respect to workplace violence. In a 1992 OSHA interpretation letter, it took the following stance:
In a workplace where risk of violence and serious personal injury are significant enough to be “recognized hazards,” the General Duty clause would require the employer to take feasible steps to minimize those risks. Failure to implement . . . could result in a finding of an OSH Act violation. On the other hand, the occurrence of acts of violence which are not “recognized” as characteristic of employment and represent random anti-social acts which may occur anywhere would not subject the employer to a citation for violation of the OSH Act. . . the recognizability and foreseeability of the hazard and the feasibility of the means of abatement are some of the critical factors to be considered.
OSHA’s 2002 “Fact Sheet on Workplace Violence” provided very little additional guidance. After suggesting a number of steps to control and curtail violence in the workplace, the following question and answer were put forth: “What protections does OSHA offer?” Answer: “The Occupational Safety and Health Act’s General Duty Clause requires employers to provide a safe and healthful workplace for all workers covered by the OSH Act. Employers who do not take reasonable steps to prevent or abate a recognized violence hazard in the workplace can be cited. Failure to implement suggestions in this fact sheet, however, is not itself a violation of the General Duty Clause.”
Thus, while covered employers ostensibly possess duties to control workplace violence, their failure to comply with such duties would appear to be problematic only for those who fail to act where there is extensive and predictable violence in or at the workplace. Nonetheless, OSHA allows itself much “wiggle room” and has cited employers in factual circumstances where violence was foreseeable and found to be a recognized hazard. For this reason and others, an employer is well advised to implement plans to cope with workplace violence.
FACT OR FICTION? Employees Cannot Be Fired if They Refuse to Work Under Dangerous Conditions (Including Violence).
Answer: Fact - under certain circumstances; Fiction – under certain circumstances
If an employee refuses to work under alleged dangerous conditions, including allegedly violent conditions in the workplace, employers should seek the assistance of legal counsel prior to initiating any disciplinary action. These situations implicate provisions of a number of different federal statutes and are rife with trap doors for the unwary employer.
The OSH Act does not specifically state that individual employees possess the right to refuse to perform work in the face of a potentially hazardous condition at a workplace. However, following the passage of the statute, the Secretary of Labor issued a regulation providing that an employee does possess this right to refuse work in certain limited circumstances. These involve conditions where the employee is confronted with a choice between performing assigned tasks or subjecting himself to serious injury or death due to the hazardous conditions. However, a number of technical criteria must be satisfied by the employee to justify the refusal to work and thereby receive OSH Act protection. Accordingly, knowledge of the laws and corresponding close analysis of the facts become necessary and call for legal counsel.
Apart from the OSH Act, Section 8(a)(1) of the National Labor Relations Act (NLRA), protects employees who, on a group basis, protest over what they believe, in good faith, to be dangerous working conditions. Should they protest by refusing to work as a group, they cannot be fired. They can, however, be treated as strikers and “replaced,” allowing them to return at some subsequent time on a preferential hiring list after they offer to return to work. Further muddying the waters is the NLRA’s Section 502. This provision protects employees, either individually or as a group, who refuse to perform tasks which pose abnormally dangerous working conditions. Under Section 502, the refusal to work must be shown to result from an “objectively-based-belief of abnormally dangerous working conditions” in order for the refusal to be deemed protected. If the employee cannot establish, by objective evidence, that their working conditions were abnormally dangerous, his/her refusal to work would be deemed unprotected by Section 502, and the employee would not be insulated from discipline, including discharge. Thus, Section 502 grants an individual employee a limited right to refuse to perform work. Such refusal differs from the protected “concerted activity” of two or more employees under Section 8(a)(1) of the NLRA, where employees only need a “good faith belief” concerning the danger posed by the work assignment. Section 502 requires “ascertainable objective evidence” that the condition is not only dangerous or inherently dangerous, but also “abnormally dangerous,” placing a much higher burden on the employee who refuses to work.
Finally, there are federal statutes in certain industries which convey individual rights to employees to make complaints about safety and/or refuse to work under unsafe conditions, and be protected from retaliatory disciplinary action from their employer for doing so. These “whistleblower” statutes exist in the following industries: hazardous waste; water; chemicals; solid waste disposal; air carriers; asbestos; containerized cargo; nuclear energy; pipelines, and interstate trucking. In these industries, also, discipline should not be implemented without first consulting legal counsel versed in these statutes.
Under any definition, there can be no question that workplace violence has become a costly phenomenon in our society. This requires the employer to examine its own workforce as well as conditions both inside and outside the immediate workplace which may pose danger to employees. While serious violent crime within or affecting the workplace appears to be on the decline, there remains an extremely high incidence of abusive, threatening, and harassing behavior which can also qualify as violent conduct. In these areas, which are more likely to occur between co-workers, adoption of zero tolerance policies utilizing a broad definition of workplace violence, plus implementation of plans to deal with violent behavior, can provide substantial practical and legal benefit to your organization.