Workplace violence: preparing for the unthinkable

Louis C. Klein, Esquire, Of Counsel to Jackson DeMarco Tidus Peckenpaugh

Over the last couple of decades, violence in the workplace has actually dropped to an all-time low. A March 2011 Special Report by the Bureau of Justice Statistics, a division of the U.S. Department of Justice, shows that in almost every major crime category, including homicides, workplace violence has continued to decline since 1993. Over this time, homicides in the workplace have decreased by 51 percent. Thirty percent of these homicides were committed by co-workers or those related to an employee, such as a spouse or jilted lover. The decline in workplace violence coincides with a downward trend of violent crime across the nation over the same time frame.

But does that really mean our workplaces are safe?

Smart Business spoke to Louis C. Klein, Esquire, Of Counsel to Jackson DeMarco Tidus Peckenpaugh, about how employers can ensure they are not exposed to workplace violence issues.

Is workplace violence still something employers should worry about?

Each year, approximately 2 million U.S. workers are injured as a result of workplace violence, losing on average $16 million in wages. The cost to employers has been even more staggering – nearly $121 billion annually based on the National Institute of Occupational Safety and Health estimates. From 2005-2009, guns were used in 80 percent of homicides committed in the workplace and homicides are now the fourth leading cause of fatal occupational injury in the nation.

Although the statistics compiled by the DOJ have shown a consistent drop in workplace crime, news reports of violent acts in the workplace still abound. There is a disconnect between the actual decline in violence in the workplace and the perception that employee violence may be on the rise as a result of the current recession, with its schemes of mass layoffs and lost jobs. In a 2003 survey conducted by the Society of Human Resource Management, more than 50 percent of employees were concerned that workplace violence might occur at their organizations.

Can employers be held liable for workplace violence?

Employers have a duty to prevent workplace violence. Employers who fail to take this obligation seriously not only face actions from governmental agencies, but also from injured employees. Claims of negligence, negligent hiring and negligent retention are a few of the real liabilities, as well as increased workers’ compensation costs and lost work time for injured employees.

Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (OSHA) states that employers have a ‘general duty’ to provide employees with work and a workplace free from ‘recognized hazards that are causing or are likely to cause death or serious physical harm’ to employees — 29 U.S.C. §654(a)(1). The prevention of workplace violence has generally been found to fall under this ‘general duty’ clause.

Under current law, employers have a duty under OSHA to prevent workplace violence when the hazards involved: (1) create a significant risk to employees in other than a freakish or utterly implausible concurrence of circumstances; (2) are known to the employer and are considered hazards in the employer’s business or industry; and (3) are hazards which the employer can reasonably be expected to prevent.

An employer who becomes aware of threats or intimidation, or who has experienced some type of workplace violence already would be on notice of the potential risk of violence in the workplace and would most likely be required to institute a workplace violence program aimed at prevention.

What can employers do to prevent incidents of violence?

The most effective weapon an employer can use against workplace violence is preparation. Employers should have, and strictly enforce, a strong written workplace violence policy and prevention plan. The policy should be written in clear and unambiguous language setting forth a zero tolerance standard.

Employers should ‘hire smart.’ Insist on fully completed applications and thoroughly review a potential job candidate’s information. An employer should always try to conduct face-to-face interviews and the interviewer should have some training in interview techniques. Background checks are paramount.

Educating the work force, and specifically supervisors and managers, on the prevention plan is critical to the success of any workplace violence prevention program. Educating employees on the indicators that could lead to workplace violence is also a wise consideration. Not only will training and education provide employees with a sense of a company’s serious commitment to preventing violent incidents, but it will alleviate employees’ anxiety and may help diffuse difficult situations that could have led to a violent incident. All employees should know how to recognize and report incidents of violent, and threatening or intimidating behavior, and should have immediate access to phone numbers for emergency personnel, such as local law enforcement and fire departments.

In addition to the education and training suggestions above, employers should also train supervisors in basic leadership principles and crisis management. Supervisors should work closely with human resources to understand company standards relating to employee performance, counseling, discipline and other management tools. These employee intervention tools can ultimately help diffuse very tense and difficult situations from becoming a potential disaster.

Finally, alternative dispute resolution programs can be an effective tool when a potential employee conflict has been identified. The dispute resolution program can take many different forms, such as the use of ombudspersons, mediations, or peer reviews. The idea is to diffuse the situation as soon as it comes to light.

Although the statistics point to a decline in workplace violence, it remains a very real problem confronting both employers and employees. Consequently, an employer must prepare for the unthinkable, become and remain vigilant, and adequately educate its workforce.

Louis C. Klein, Esquire, is Of Counsel to Jackson DeMarco Tidus Peckenpaugh. Mr. Klein partners with businesses to resolve difficult employee issues, including the development of workplace violence policies and prevention plans. He can be reached at (805) 418-1907 or [email protected]