The workplace tragedy that occurred in Minneapolis two weeks ago, and the media coverage that followed, concerned all Minnesotans, me included. In addition to my reaction as a citizen, I viewed the events and their aftermath as an employment lawyer.
As is often the case in the face of horrific and inexplicable acts of violence, the workplace mass shootings by Andrew Engeldinger led to questions from many quarters about whether and how such a senseless act of violence could have been avoided. Such well-intentioned questioning, while certainly understandable, raises important employment law-related questions and concerns.
A follow-up piece in a Minneapolis newspaper made my “employment lawyer radar” ping noisily. The article included insights from workplace violence experts about detecting and preventing violent outbursts from disgruntled employees. One expert, criminologist James Fox, noted that efforts to prevent workplace violence can be frustrated by the fact that behavioral warning signs tend to be only “yellow flags” that do not become “red flags” until actual violence erupts.
Fox may be right, but there are dangers in becoming hyper-vigilant about “yellow flag” employee behavior. It takes training and experience to distinguish between behavior that portends violence and behavior that is simply atypical. Because behavioral differences can be the result of protected mental disabilities, intolerance of unusual behavior may become unlawful disability discrimination. Remember also that, in addition to prohibiting discrimination against qualified disabled employees, federal and state laws prohibit discrimination against employees who are regarded as disabled, whether they are, in fact, disabled or not. It is easy to imagine an employer allowing fear of workplace violence to become unfounded fear of employees whose behavior is unusual.
Supervisors and managers should always focus on the actual effect of an employee’s unusual behavior on his or her performance and should ask whether the behavior violates any specific and objective workplace policies. It is wise to avoid making significant disciplinary decisions, including decisions to terminate, based only on subjective or vague complaints of behavior that is erratic or strange.
Although employer actions cannot ensure that workplace violence will never occur, there are important things that every employer can do to minimize its likelihood and to control its impact if it does occur:
- Consider offering an employee assistance program that can assist workers as they deal with personal problems, illnesses, and stress.
- Make sure that managers and supervisors behave calmly, professionally, and respectfully in all their dealings with employees.
- Monitor the workplace for bullying or threats.
- Encourage managers and supervisors to be thoughtful and humane in their personnel decisions and practices. Make sure that discipline and termination decisions are communicated appropriately and respectfully.
- If a potential for workplace violence is suspected, get help from professionals who can provide a threat assessment and suggest countermeasures.
- Enact a workplace violence policy and response plan that includes appropriate training for managers and supervisors.