Although interest spikes after every mass shooting, employers have not done much more than update their written workplace violence policies. Most of these policies are simply statements in employee handbooks and include generalized provisions. Likewise, while many employers now show their employees the DHS “Run, Hide, Fight” video on how to respond to an active shooting, employers have not increased training or revised evacuation programs, emergency action plans or emergency response plans.
An attitude change is required. While it is still unlikely that your workplace will experience a mass shooting, the frequency of such events is rapidly increasing. Such events can destroy a business. Similarly, less serious instances of workplace violence occur hundreds of thousands of times per year.
Some of our conclusions are as follows:
Myth 1: There is a profile of “the shooter…”
Fact: Shooters and non-lethal approachers do not fit one descriptive or demographic profile or even several descriptive or demographic profiles.
Myth 2: Workplace shooting is a product of mental illness or derangement.
Fact: Mental illness only rarely plays a key role in an assassination event.
Myth 3: The persons most likely to carry out threats are those who make direct threats.
Fact: Persons who carry out attacks often do not make threats; especially direct threats.
From US DOJ – Protective Intelligence and Threat Assessment Investigations (1998).
Action Point: Employers will have to evaluate state laws dealing with employer rights to carry guns in the workplace. Different standards may apply to guns retained in employees’ vehicles in parking lots.
The above points are just some of the lessons from this ongoing process, and even these recommendations should be applied and on a case-by-case basis.
We strongly encourage employers to contact their FP counsel about revising various policies and obtaining resources in evaluating their unique security issues.
Relevant Links:
Suicide Prevention (ABA article focusing on lawyers) – depressed employees present more of a danger to themselves than to others, but many of the same steps intended to prevent workplace violence may also prevent a suicide.
Click here for the original article.
]]>I talked with another company about protecting its high visibility executives where third parties are publically vilifying and with other employers about whether to allow employees to carry arms at work. And we’ve talked with a near countless number of employers about “Surviving Active Shooter Training.”
Today’s tragic Kansas shooting will increase the demand for improved strategies to protect our workers, but several points occurred to me;
1. Yes, the sheer number of recent mass shootings demands employer response but mass shootings are not our main workplace security concerns. These incidents are, however, a business destroying event, and even if rare, must be planned against.
2. Everyday risks due to estranged couples, muggers, robbers, and sexual assailants cause me more concern and statistically are bigger worries. A shooting is nightmarish but an employee being assaulted is also bad. Check these outstanding Infographics from HR Daily Advisor Illustrating Workplace Violence Areas.
3. Society doesn’t (yet) have great solutions and we’re all repeating formulaic solutions and responses. Every worker ought to at least view the DHS “Run, Hide, Fight” videos about surviving an active shooter, but we also have to evaluate our workplaces for hazards as we would for any safety hazard and devise solutions.
4. We must develop training for specific work settings and for general situational awareness.
5. Employers need to evaluate not only their fixed sites but the safety concerns posed by deliveries, home health providers, and realtors alone in offices, retail workers, and travelling employees.
Here’s a few initial observations and we’ll discuss these issues further in a two-part webinar series on March 29, 2016 and April 14, 2016.
The facts we know so far about the Kansas shooting are instructive ….
• He shot up his workplace, but his rampage started elsewhere and may have been triggered by being served with a Temporary restraining Order based upon allegations of abuse by a girlfriend. From an AP Story:
…. the woman, whose name is not being published, wrote that she and Ford were living together but broke up. He was moving out.
She wrote that on Feb. 5, she and Ford “were verbally fighting” when “it became physical by him pushing me and then grabbing me.”
“He placed me in a chokehold from behind,” she wrote, saying that she couldn’t breathe. “He then got me to ground while choking me-finally releasing me.”
The woman describes Ford as an “alcoholic,” “violent” and “depressed,” according to the order of protection from abuse.
• Employers don’t want to become involved with employee’s domestic disputes, but what about when the person is physically violent with their spouse or girlfriend … or makes threats?
Walton said Ford, 38, a Newton resident, was served with the order about 90 minutes before the first shooting, at about 3:30 p.m.
“It’s normal when someone gets served a protection of abuse order” to be upset, Walton said this morning, explaining that Ford’s behavior wasn’t abnormal when he was served.
• Maybe employers need to require or encourage employees to advise them when they are involved in a domestic or other dispute where violence may be a risk. Does obtaining a TRO trigger such a response? Maybe so.
• If an employer does ask employees to alert them to potential workplace violence concerns which could spill over to the workplace, the employer is taking on some level of duty toward the employee, coworkers and the public, depending on the facts.
• An incompetent or inadequate response may demonstrate that the employer was on notice of the hazard and responded inadequately. Recall the recent Missouri decision where an employer was on notice of threats from an employee’s spouse and formed ad hoc groups of employees to walk her to her car instead of using professional security?
• OSHA is serious about issuing 5(a)(1) General Duty citations, especially in certain settings, such as hospitals. Check OSHA’s Workplace Violence page and their Press Release, Healthcare Violence Page and Guidance about Inspecting Hospitals, especially for ergonomic and workplace violence issues.
• From an OSHA defense position, when challenging OSHA’s issuance of a 5(a)(1) citation, it’s harder for OSHA to cite your efforts as inadequate than to cite you for having taken few concrete steps.
So join us on March 29, 2016 and April 14, 2016 as we flesh out these difficult questions.
Tough Questions about Workplace Violence – Panel Discussion
February 26’s tragic Kansas workplace shooting further raised the anxiety of employers, employees and OSHA about workplace violence. Numerous companies have hired consultants to perform Active Shooter Training. This is a good step but mass shootings are not the most common workplace violence situations. Join Howard Mavity and Travis Vance for two panel discussions featuring F & P attorneys, security providers, law enforcement and other professionals as we discuss a wide range of issues, including Evaluating Your Workplace, Protecting Isolated Workers or Employees at Customer sites, OSHA’s Emphasis efforts on Workplace Violence and especially on Hospitals, Executive Protection, and dealing with the angry employee.
]]>Do you and your employees know what to do if you hear shooting? The most common reactions are freezing in place or dropping to the floor, and neither action is generally a sound survival strategy. Dropping to the floor or hiding in a place with no escape route may simply make the shooter’s job easier because he is not faced with moving targets. Honestly; have you ever thought about what you and your employees should do if a shooter is stalking through your workplace?
The good news is that it doesn’t take much effort to provide at least basic active shooter trining. The bad news is that few employers do so. The analysis is that a workplace shooting is unlikely, so why train employees about how to respond. The answer is simple risk analysis …
The training will probably never be needed, but if an incident does occur, your training may save your employees. The instruction might also save them or their family outside of work.
Resources
The Department of Homeland Security maintains a site with plenty of information, including a 90 video.
But you don’t need 90 minutes … show your employees this five minute YouTube video by DHS.
I’ll share a brief summary of suggestions. If you hear shooting, RUN! If you cannot run, only then should you hide. If you have no other option, fight.
More importantly, teach yourself to practice “situational awareness.” I fought for many years, and as I aged, I had to deal with guys half my age. “Situational awareness” and quick reflexes were survival skills when one is in their late 40s fighting with guys in the 20s. My fighting, combined with other training and experiences, resulted in me always considering my environment. When I’m in a theater, I note the exits. I ponder what I would do in certain circumstances. It’s second nature. It doesn’t take a lot of time. I simply stay alert. Do you?
]]>It’s bad enough when one has to defend against fabricated allegations about racial slurs and name calling, let alone when it apparently, in fact, happened. Such a situation is a nightmare for an employer, and to state the obvious, should never have occurred. But never say that “it couldn’t happen in my company.”
How Could This Happen?
The conduct described in this case is reprehensible. But did it start somewhat innocently and escalate to something this terrible? Was this a decent company asleep at the wheel and not a throwback to a place found in the recent movie, “Django Unchained”?
We can only speculate, but according to the EEOC’s lawsuit, Contonius Gill and Robert Floyd, Jr., both African-American, worked as truck drivers for A.C. Widenhouse. From as early as May 2007 through at least June 2008, Gill was repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility’s general manager, (who was also his supervisor); the company’s dispatcher; several mechanics; and other truck drivers, all of whom are white. The comments and slurs included “n—–r,” “monkey” and “boy.” Gill testified that on one occasion he was approached by a coworker with a noose and was told, “This is for you. Do you want to hang from the family tree?” Gill further testified that he was asked by white employees if he wanted to be the “coon” in their “coon hunt.”
The other employee, Robert Floyd, testified that when he was hired in 2005, he was the only African-American working at the company. Floyd said the company’s general manager told him that he was the company’s “token black.” Floyd testified that on another occasion the general manager told him, “Don’t find a noose with your name on it,” and talked about having some of his “friends” visit Floyd in the middle of the night. Gill repeatedly complained about racial harassment to the company’s dispatcher and general manager, and Floyd complained to an owner of the company, but the harassment continued, according to testimony
Action Points
Absolutely nothing will get the EEOC’s attention faster than allegations of nooses, KKK markings or use of racial slurs like “coon.” The EEOC is actively looking for such cases to litigate so as to “send messages” to discourage bad behavior. They may not be too picky about their fact checking, so if you receive an EEOC charge, even if the claim seems patently frivolous, call counsel. The EEOC is especially interested in cases where they believe that the complained of behavior suggests systemic discrimination, which may broaden into a class action or company wide scrutiny.
Our advice? Stop bad behavior before it gets so bad. Everyone expresses outrage at the allegations in this type of case, but what kind of culture allowed things to get to that point?
Ask yourself: “What is human resource’s role or upper management’s in preventing this kind of problem?”
Does your company take seriously its Complaint, Non-Discrimination and No-Harassment policies? Do you regularly train employees and supervisors . . . or, just pay lip service to the idea? Now, ask these same questions about each of your sites.
Annually train supervisors about effective discipline and discharge. Many supervisors come up through the ranks and do not know how to deal with such conduct. Don’t focus solely on Non-Discrimination and No-Harassment obligations – instead, demand “professionalism.” Always promptly investigate even seemingly minor claims and respond to the claimant.
Finally, remember that lawsuits “walk into your workplace on two feet.” I am not focusing on legitimate claims. I am talking about fabricated or frivolous claims. There seems to be a self-selection process where the employees with the bogus discrimination claims file suits, and individuals with genuine grievances, simply get another job. Neither outcome is good.
So, in addition to maintaining a professional workplace where such behavior doesn’t occur, recognize the type of hire who may use such claims as a means of retaliation for some grievance, or who always assumes that any adverse action is due to discriminatory intent rather than their own performance.
]]>This extraordinary cost demands that employers take action now before the worst of the “season,” including:
The human resources challenges are accompanied by legal risks as employers respond to sick employees, mandate flu vaccinations, and seek to maintain a safe workplace. Employment law issues include performing a risk assessment to justify any vaccination demands, or other safety and personnel actions, as well as engaging in an individual analysis of employee refusals to take vaccinations due to religious or ADA concerns.
What About Flu Shots?
Every public-health authority vigorously encourages employers to support efforts at flu vaccinations for employees. Unfortunately, some employees do not want to take vaccines and a variety of groups vocally oppose vaccinations. As an example, healthcare employers often make flu shots mandatory and have had success in requiring employees to take flu vaccinations as a term of employment.
In January 2013, the Healthcare Division of the Service Employees International Union (SEIU) passed a resolution opposing mandatory vaccinations and arguing for only “voluntary” vaccinations, as well as mandatory education programs. The SEIU subsequently filed and withdrew a suit challenging Rhode Island’s regulation requiring mandatory vaccinations for healthcare workers. Employers should prepare for “push back,” and monitor legal developments if they decide to require flu shots.
In determining whether an employer may mandate flu vaccinations, OSHA, the EEOC, and other agencies heavily rely on CDC positions, whether the issue is vaccination or response to employees with infectious diseases. A 2009 OSHA Interpretation Letter largely deferred to healthcare employers’ risk assessment following CDC guidance. The nature of the workplace and employee duties should be evaluated in a risk assessment.
Some workplaces may have more problems than others in justifying a mandatory requirement. Similarly, consider each position and why you “objectively” consider vaccination to be essential. But you must still at least consider the reasons for an employee objection and whether any accommodation may be feasible in the face of health or religious objections.
The EEOC position is that the employer must engage in an individual interactive process in response to religious or health-based (ADA) objections, and objectively consider whether there is a “direct threat” in taking the vaccine. The employer must consider “accommodation” options. The challenge is most likely because of alleged religious reasons. The EEOC explained how it would analyze employers’ obligation to accommodate religious objection in a March 5, 2012, informal discussion letter.
The EEOC and the courts do not require all that much to establish a sincerely held religious belief. In one decision, a federal court allowed a former children’s hospital worker to proceed with her religious discrimination claim that she objected to the flu vaccination because she was a Vegan.
A unionized employer must also adhere to its collective bargaining agreement and may have a duty to bargain about flu prevention policies. In Virginia Mason Hospital, the NLRB held that the employer could unilaterally implement a flu-prevention policy because the union agreed to a broad management-rights clause in the collective bargaining agreement. The contract will determine whether the employer can unilaterally mandate vaccinations, and mandatory flu vaccination is an inflammatory labor issue.
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