Legal Update - July - 2005
Preventing Workplace Violence and Minimizing Employer Exposure

One of the fastest-growing problems in the workplace is violence. Experts estimate that more than 110,000 acts of workplace violence occur annually, with approximately 1,000 people a year being murdered on-the-job. With increasing numbers of violent episodes in the workplace, employers must become more vigilant about preventing violence and minimizing liability for themselves should violence occur. Indeed, one of the disturbing recent legal trends is that employers are often the target of lawsuits when violence in the workplace occurs.

In dealing with the issue, employers must weigh the important legal protections afforded individuals under anti-discrimination and privacy laws against their obligation to maintain a safe working environment for their employees. Employers must do their best to be sure that the people they hire do not pose a threat to their employees and customers. An employer, for example, that hires a mentally unstable employee may be placed in a dilemma. On the one hand, if the employer takes adverse employment action against such an individual, the employer could face a discrimination suit. If, on the other hand, the employer takes no action with respect to a potentially dangerous employee, and violence ensues, the employer could be liable to injured third parties under theories of negligent hiring or negligent retention.

Most states, including Illinois, recognize a legal claim against an employer for negligently hiring or negligently retaining an unstable or violent employee. Under a negligent hiring theory, an employer may be held liable, if at the time the employee is hired, the employer knew or should have known that the employee who later harms a third party was unfit for employment. Negligent retention differs in that the employer generally becomes aware through actual or constructive knowledge after hiring the employee that the employee may be unfit for employment. If the employer continues to employ that individual, with knowledge of the problem, and the employee later harms someone in the course of the employer's business, the employer may be held liable under a theory of negligent retention.

Screening Devices and Preventive Strategies

To avoid liability for negligent hiring and retention, employers may endeavor to reject potentially violent, unstable, or unfit employees by using a variety of screening devices. These include criminal background checks, drug tests, post-offer medical examinations, psychological testing, and reference checks. Employers, however, must exercise care when using some of these kinds of devices, lest they wind up being liable to applicants or employees for claims such as discrimination and invasion of privacy. For example, refusing to hire a candidate simply because he has an arrest record without a conviction would be unlawful in many states, including Illinois.

There are a number of preventive strategies which employers may want to consider to address workplace violence.

Anti-Violence Policy

Employers should communicate, preferably through an informational seminar, a strong anti-violence policy to their employees confirming that violence will not be tolerated in the workplace. It can be similar to an employer's written anti-harassment policy. For example, it can encourage, if not require, employees to report any instances or threats of violence and even list the types of behaviors which need to be reported. The policy can also include procedures for investigating and responding to threats of violence.

Other Policies

In addition to an anti-violence policy, employers may want to have other policies in place to deal with fitness for duty determinations. Some employers like to have a "fitness for duty" policy. Others prefer to adopt a series of policies and guidelines which, in tandem, (1) permit an employer to deal with inappropriate employee conduct, (2) require employees to submit to medical or "fitness for duty" examinations under appropriate circumstances, and (3) allow employers to make "fitness for duty" determinations. Examples of such policies include: an Anti-Harassment Policy; an ADA Policy; a Drug and Alcohol Policy; a Family and Medical Leave Act Policy; and Work Rules. In some of these policies employers will want to include language about their right to require applicants and employees to submit to medical exams.

Employers also may want to adopt a specific policy on medical examinations to put employees on notice that both offers of employment and continued employment are subject to satisfactory completion of medical exams. A medical exam policy should outline the circumstances under which an employee may be examined and should not run afoul of the Americans with Disabilities Act or the EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities. Enforcement of the policy should contemplate making reasonable accommodations and documenting those efforts. Employers will want to be sure that their employment application form obtains the consent of applicants to submit to post offer medical exams, medical exams during employment, and drug and alcohol testing.

Employee Assistance Program

Another step employers can take is to make an employee assistance program available to their employees. The program may include counseling and drug and alcohol abuse treatment. The employer can even provide a "hot-line" for reporting threats of violence. The thrust of these programs should not be punitive but rather to help protect employees, offer them counseling, defuse stress, and provide a safe work environment for everyone.

Training

Employers also need to train their managers and supervisors how to spot violent tendencies and to help mollify explosive situations. Supervisors need to know when to report behavior and to recognize that every threat must be taken seriously. Supervisors also need to be aware that sexual harassment may be a precursor of more serious forms of violence and to be on the look-out for it.

Threat Assessment Team

Rather than wait for a situation to become explosive, some employers have established threat assessment teams so they are prepared to deal with a violent problem should it erupt. The team might include an experienced human resources person, an employment relations lawyer, a health care professional with a background in psychology, and someone from security. The threat assessment team should be on the alert for stressful situations. For example, if you are going to have to fire people or conduct a layoff, you will want to think about ways to reduce employees' stress. Quite often, violence erupts when a disgruntled former employee wants to "get back" at his employer for firing him. Try to conduct employee terminations with compassion and with notice where possible. Consider whether you can provide some outplacement assistance and other support. Also consider whether you can provide an employee with a generous severance package to reduce the financial strains and stress of losing one's job.

Improved Security Measures

Employers need to think about reviewing security measures for their employees, customers, and patrons. Possible measures include: improved lighting; video cameras; patrolled parking lots; restricting access to facilities; buzz-in systems; security cards; metal detectors; and establishing close relations with local law-enforcement officials.

Acting Proactively

Although employers face competing considerations in hiring and retaining potentially violent employees, there are steps that they can take to reduce the tensions. By acting proactively, they can prevent workplace violence and, should it occur, minimize their organization's exposure to liability.

FVLD publishes updates on legal issues and summaries of legal topics for its clients and friends solely for general informational purposes. They do not constitute legal advice, nor are they intended as a substitute for obtaining legal or other professional advice based upon specific factual circumstances or issues. We welcome comments or questions. If we can be of assistance, please call or write Jon Vegosen, 312.701.6860, jvegosen@fvldlaw.com, Glenn Rice, 312.701.6895, grice@fvldlaw.com, or consult with your regular FVLD contact.

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