Keeping the workplace safe from violent incidents requires hospitality employers to be able to identify warning signs and risk factors. But the work starts before that; it starts with the hiring and employee monitoring processes.

Before And After You Hire: Internal Threats Of Violence

Internal threats of workplace violence require separate considerations from external threats. Preventing internal threats of violence generally requires a focus on pre-employment screening, employee monitoring, and effective employee training. Hospitality managers can think about this as occurring in two phases: before the hire and after the hire.

Before You Hire

An important time to begin taking measures to prevent and minimize workplace violence is during the hiring process. Effective pre-employment screening can help you avoid hiring employees with “red-flag” behavior. Some steps that hospitality employers can take to avoid future instances of workplace violence include:

1. Criminal history and background checks. You are permitted to conduct criminal history and background checks for job applicants. While federal law prohibits the use of this information in ways that would discriminate against or disparately affect protected classes (e.g., race and national origin), you can use previous convictions, and sometimes arrests, as a screening tool, on a case-by-case basis, where such convictions may relate to an essential job requirement. With the level of daily customer contact present in the hospitality industry, properly conducted criminal history screenings, particularly where there is a history of violent crime, can work to prevent future incidents of workplace violence. Note, however, that state and local laws often govern the use of background checks by employers, so you should consult with legal counsel on best practices for implementing this screening tool.
2. Social media. There are currently no federal laws that prevent you from monitoring the social media activity of prospective and current employees. Despite valid privacy concerns and the potential for bias, the social media accounts of both potential and current employees can provide a wealth of information for employers. In the hospitality industry, a large majority of the employees are millennials who are often more comfortable portraying their true thoughts through a computer screen. Through these sites, you may possibly learn of the potential violent predispositions that job applicants may have. A job applicant’s social media presence can demonstrate to you whether warning signs like fascination with violence, for instance, are present. This applies equally to current employees.

It is important to note, however, that the use of social medial as a pre-employment screening tool or a monitoring device for current workers comes with a number of potential pitfalls that you must work diligently to avoid. A potential employee’s social media can also alert employers to information such as the employee’s race, religion, gender, disability, sexual orientation, pregnancy status, etc., none of which can be taken account in the decision to hire an applicant. Moreover, a current employee’s social media feed might reveal private information you might not want to know for fear that your knowledge could be used against you in a later discrimination or retaliation claim. Therefore, you should consult with legal counsel before deciding to implement any sort of social media screening.

After You Hire

Because warning signs of future workplace violence are not always apparent before you hire, you must still take steps to monitor their current employees for potential signs. In the stressful environment of the hospitality industry, it does not take much for a simple disagreement between line cooks in the kitchen to turn into knives being pulled against a coworker. A few tips for employers:

1. You should implement and maintain an effective workplace violence plan. This plan will contain outright bans on certain “trigger” behavior such as harassment, fighting, threatening, and bullying—and outline the discipline for such behavior. The plan may also contain a ban on employees carrying weapons on your premises as well. The plan should provide conflict resolution tips and strategies for employees to use to deescalate a stressful situation.
2. You should train employees on how to identify and report “suspicious behavior,” some of which can include a fascination with violence, excessive verbal threats to other employees or against restaurant patrons, substance or alcohol abuse, obvious indicators of mental instability, or a history of poor impulse control or violence. In training employees on how to identify and report suspicious behavior, you should also have an effective procedure for handling employees that have been reported:
   1. First, management needs to take all threats seriously;
   2. Where the reports are of internal conflicts, harassment, or bullying, you need to work quickly to understand the root of the conflict and diffuse it; and
   3. You should discipline as appropriate in order to clearly demonstrate that any such violent behavior will not be tolerated.
3. Employee training should also include training on conflict resolution between other employees in the workplace. Effective conflict resolution training is necessary to aid employees in immediately deescalating situations that may arise in the workplace. Importantly, these skills can also be used when dealing with the public. In training employees on how to effectively manage conflict and deescalate potential acts of violence, you should adopt the following training guidelines:
   1. Where tempers are running high, it is best to separate the employees and give them space to calm down;
   2. It is important to understand what the nature of the conflict is;
   3. Extreme care should be taken not to pass blame or take sides; and
   4. Management should be informed about the situation as soon as practicable.

The high rate of turnover in the hospitality industry presents an added layer of responsibility as it relates to dealing with internal threats of violence, because you must ensure that your new employees are constantly being trained. As such, you should consider implementing both a new-hire training schedule, as well as periodic refresher trainings.

When It Is Out Of Your Control: External Threats Of Violence

Because hospitality employers welcome the public, monitoring external threats of violence is extremely important. It only takes one angry customer or even a random criminal act to result in serious incidents of workplace violence. Some best practice tips:

1. Just like you have a fire evacuation plan, you should also have plans for other emergencies like active shooters, robberies, or other violent workplace incidents. For instance, your staff should know where to go, who is responsible for contacting emergency services, and where the emergency equipment (e.g., first aid kits) are located. A comprehensive workplace plan is a useful tool in making such designations. Ideally, a workplace plan should contain a procedure for employees to follow in the event of an incident of violence and should identify a designated manager or other responsible employee who will coordinate evacuation or other employee safety efforts, and initiate or maintain contact with law enforcement.
2. Many hospitality businesses operate at late hours, so it is important to structure employee shifts in order to avoid employees closing alone or working in isolated areas late into the night.
3. As with internal threats of violence, it is also important to train employees on effective conflict resolution and deescalating incidents between employees and the patrons, or among patrons. While factors such as whether alcohol is served or not may play a role in how extensively employees should be trained, it is advisable to have at least some level of conflict resolution training.
4. Hospitality operations, like other cash-heavy businesses, are also targets for robbers. You need to keep this in mind and train your employees to be cognizant of how they handle cash in front of customers and other members of the public. Employees also need to be trained on who to contact in case of criminal attacks, and how to behave during attempted robberies in order to deescalate the situation.
5. Where financially practicable, you should consider investing in onsite, visible security. This could include visible security cameras but can go as far as security guards. Having such visible security can serve as a major deterrent for both internal and external acts of workplace violence. Even where it is not financially practicable to make such security investments, you should still consider having this kind of visible security on special occasions where the risk of violence may be heightened—e.g., Super Bowl Sunday, St. Patrick’s Day, New Year’s Eve, etc.

Conclusion

It is important to note that some instances of workplace violence cannot be reasonably foreseen or prevented, mostly due to the unpredictability of human nature. While careful background screenings, social media review, and even putting in place effective policies and procedures for times of violent incidents will go a long way to minimize the occurrence and impact of these incidents, they cannot prevent against some of the recent incidents of workplace violence covered by the media. Regardless, you have steps you can take to prevent and minimize the impact of incidents that may be within your control.

Because several legal issues may arise with an employer’s decision to both implement effective pre-employment screening tools and construct workplace violence plans, you should consult with legal counsel as you develop these procedures. If you need assistance with how to implement best practices to combat workplace violence, contact your Fisher Phillips attorney.

For more information, contact the author at CEnekwa@fisherphillips.com or 404.231.1400.

About Fisher Phillips
Employers often must take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back up management. That’s why some of the savviest employers come to the firm to handle their toughest labor and employment cases.Whether it’s a class action involving thousands of potential class members, a jury trial with exposure in the millions, or a union organizing effort or strike that could cripple a company, employers with their choice of employment lawyers choose Fisher Phillips to handle their most difficult and dangerous cases.

As mentioned in that blog, OSHA does not have a specific standard governing workplace violence but incidents may potentially be cited as a violation of the general duty clause.   Typical examples of employment situations that may pose a higher risk of workplace violence incidents include but are not limited to:

1. Duties that involve the exchange of money
2. Delivery of passengers, goods, or services
3. Duties that involve mobile workplace assignments
4. Working with unstable or volatile persons in health care, social service, or criminal justice settings
5. Working alone or in small numbers
6. Working late at night or during early morning hours
7. Working in high-crime areas
8. Duties that involve guarding valuable property or possessions
9. Working in community-based settings
10. Working in a location with uncontrolled public access to the workplace

Some jurisdictions such as New York have enacted legislation requiring public sector employers to develop and implement programs to prevent and minimize workplace violence.  Although the New York law is limited to public sector employers, it can provide all private sector employers a good roadmap on what an effective workplace violence prevention program should include.  Generally speaking, employers should consider:

• Developing and posting a written policy statement about the employer’s workplace violence prevention program goals and objectives
• Conducting a risk evaluation by examining the workplace for potential hazards related to workplace violence
• Developing a workplace violence prevention program that explains how the policy will be implemented which would ideally include details about the risks that were identified in the evaluation and describe how the employer will address such risks. The policy should also include a system to report any incidents of workplace violence similar to a reporting mechanism found in a sexual or other unlawful harassment policy
• Providing training and information for employees including any risk factors and what employees can do to protect themselves
• Documenting workplace violence incidents and maintain those records

In addition to OSHA issues, workplace violence could also expose businesses to liability in other areas such as vicarious liability for worker conduct based on a respondent superior theory, negligent hiring and negligent retention and also have potential workers’ compensation implications.  Of course, the most important issue is simply the health and wellbeing of the employees.

Employers Should Avoid “Wait-And-See” Approach

Often the employee assailant previously exhibited warning signs of violence, including aggressive complaints about management, threats made to coworkers, or involvement in an ugly domestic, marital, or child custody dispute at home. But it is common for the employer to have failed to take any measures ahead of time to prevent the event.

The pattern of employers failing to take proactive measures prior to these incidents is nothing new. For years, many employers have ignored warning signs about disgruntled or “problem” employees. This is often borne in fear they will be held legally responsible if their attempted preventive measure fails and the employee later acts violently; another concern is that they could be held legally liable for regarding an employee as disabled.

However, the recent rise in the number of violent events involving disgruntled employees shows that employers can no longer use a “wait-and-see” approach. You must balance taking action that some may view as invasive versus ensuring the safety of those in your workplace.

While you cannot accurately predict everyone who may present a risk of workplace violence, perhaps you can anticipate and head off some incidents. Consider adopting some of the following measures to protect employees from irate coworkers and others.

1. Review And Adjust Policies On Bullying And Unprofessional Behavior

Many active shooters are current employees who have developed a grudge against a supervisor or coworker. Some, like a recent shooter, may have previously lodged oral or written complaints against management.

Analyze any such complaints you receive carefully, looking for any signs of anger or aggression. Review and adjust your policies about unprofessional behavior, bullying, threats, and workplace violence. Educate your employees to recognize unacceptable behavior, and train your supervisors to address it before it advances to actual violence. Adopt a zero-tolerance policy for violent behavior.

Have a process in place to monitor the behavior of terminated employees from the time they are told the news until they leave the worksite. Did they make threats? Do they have a history of bullying or unprofessional behavior? How will you respond if they do?

2. Pay Attention If An Employee Is Served With Legal Process

If a sheriff arrives to serve legal process on an employee, watch for red flags. If the employee becomes irate, consider trying to talk individually and calm the employee. Alert your security team if the employee makes threats. Hopefully a manager can avoid escalation, but you may have to ask security to escort the employee to an isolated area where they can meet with management.

You may want to ask the employee if they desire counseling, although this may be an inflammatory move – you will be the best judge of that. Offer administrative leave if a cooling-off period is appropriate. If the employee is especially antagonistic or you have heard reports of possible violent behavior, you may have to involve outside security or law enforcement from the outset.

If the employee storms off prior to an opportunity to meet with them, ensure that any onsite security is aware of the situation and provides them with a photo of the employee. If you receive any threats, call the police in advance. Don’t wait for the irate employee to return. If necessary, you should consider retaining a private armed security service. Unfortunately, your local law enforcement department is often limited in how it can respond to threats and bad behavior. The prudent course may be to retain security for a certain period of time until things have cooled down.

3. Request Information From Employees Who Seek Protective Orders

Given the recent rise of violent events involving employees engaged in a domestic dispute at home, you should consider encouraging employees to tell you when they are involved in a dispute where violence may be a risk. This is especially the case when the employee has requested a restraining order. This is an evolving area of human resources and business management; you must balance being viewed as employer who attempts to invade employees’ private home life versus later dealing with an active shooter situation.

If an employee has requested a protective order, ask for a photograph of the recipient of the legal process. Provide the photo to any onsite security, reception employees, and management. If the individual arrives at your workplace for any reason, have the designated company representative approach the individual in a calm manner, isolate the individual in a designated area, and request that security respond to the situation.

In any of these situations, you should obtain guidance from law enforcement and security professionals who can tailor their advice to your specific workplace. In order to have such advice available, you should establish relationships with professional security advisors now.

4. Educate And Train Your Employees

Experts tell us that there are two types of workplace violence training: preparing for what could happen, and responding once something bad has already happened. Most employers have done neither.

While there are no guaranteed signs that an employee is going to engage in violent acts, there are signs of unacceptable behavior that you can train your workforce to identify and address. Any training program should require every worker to at least view the Department of Homeland Security’s “Run, Hide, Fight” video about surviving an active shooter situation. You should also evaluate your individual workplace for exposure and devise specific solutions as you would for any potential safety hazard.

We recommend you develop specific training based on your work setting, location, security layout, as well as general situational awareness. Consider professional instruction by an active shooter expert who can provide on-site, simulation-based training.

5. Revise Your Emergency Action Plan (“EAP”)

If you have more than 10 employees, you must develop a written Emergency Action Plan (EAP) when another Occupational Safety and Health Administration (OSHA) standard triggers the requirement to have an EAP. In addition, if fire extinguishers are available in your workplace, and if anyone will be evacuating during a fire or other emergency, you must have an EAP.

At a minimum, the EAP must include the following elements: the means of reporting fires and other emergencies; evacuation procedures and emergency escape route assignments; procedures for employees who remain to operate critical plant operations before they evacuate; accounting for all employees after an emergency evacuation has been completed; rescue and medical duties for employees performing them; and names or job titles of persons who can be contacted.

Now is the time to ensure your EAP is broad enough to cover management of an active shooter situation or respond to an active shooter. Do employees know what to do if such an emergency arose? Who calls the police? Where do the employees go? Do you have an onsite security presence? How do they respond? Have you rehearsed your response to such a situation? Given the recent rise of active shooter events, we anticipate that OSHA may begin to cite employers who fail to include responses to workplace violence incidents in their EAP.

Conclusion

Workplace shootings continue to occur at an alarming rate and yet many employers have not addressed this concern in their safety training programs. No perfect plan is currently available, but you should begin taking proactive steps to avoid these situations and minimize the risk to your workplace.

If you have any questions about these developments or how they may affect your business, please contact any member of our Workplace Safety and Catastrophe Management Practice Group or your regular Fisher Phillips attorney.

This Legal Alert provides an overview of a developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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:

• No checklist will identify every employee prone to workplace violence or a mass shooting.  The best approach is to encourage employees to raise concerns about coworkers.  Postmortem reviews often show that coworkers were aware that something was not quite right with an employee or that an employee was going through domestic abuse or another situation which might introduce violence to the workplace.
• Think you can spot the potential workplace shooter?  Consider the following myths …

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).

• Encourage employees to tell management if they have obtained a restraining order against someone or if they are involved in a domestic abuse situation.  Once the employer solicits this information, they also accept a duty to take some sort of reasonable action.  However, the alternative may be to be featured in the next day’s news.
• We must train supervisors to get serious about dealing with bullying and workplace rage and anger.  It is better to deal with employees before their bad behavior festers.  Moreover, bullied employees may claim that their mistreatment was based upon sex, national origin or other characteristic, and raise hostile environment claim.
• Strengthen Workplace Violence, Workplace rage, No Harassment, No Bullying, and Complaint procedures.
• Proactively deal with concerns about guns in the workplace.  All of the safety professionals with whom we conferred do not support employees bring their guns to work. Law enforcement professionals are worry about employees who have not received law enforcement training using hand guns in the workplace.  Similarly, law enforcement officials worry about shooting or being shot by an employee who has a gun when the officers respond to a crime situation.

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.

• An attitude change is required in evaluating the hard security of the workplace.  Many businesses object to the thought of blocking access from the lobby or placing receptionists behind a high counter or Lexar window.  However, employees need to engage in a realistic risk analysis and determine appropriate steps.

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.

You are an executive working intently in your office when your assistant calls and informs you that a disgruntled ex-employee has shown up at the facility with a weapon and is threatening employees.  Will you know what to do, or better yet, what not to do?

Workplace violence can be defined as any act that creates intimidating, hostile, and offensive or a threatening work environment through unwelcome words, actions or physical contact.  As we have seen on multiple occasions, workplace violence and active shooter occurrences have been on a steady incline in this country.  Are you and your company prepared?

There are two types of workplace violence that need to be taken into consideration. First is the external variety – criminal activity from a non-employee, client or customer.  Second is the internal variety of a problem employee, employee personal relationship, hostile individual due to disciplinary actions or a facility closing.  Be prepared by taking some very easy measures:

• Have a  written policy that is known throughout your organization
• Take the position of ‘no tolerance’ for this activity
• Train employees and provide ongoing training
• Make sure your plan protects first, then concentrates on compliance
• Understand and effectively communicate the legal implications

The potential deadly situations are reasonably foreseeable and this should be the standard used for compliance and determination of liability. Understand what data you need to assist in the prevention of workplace violence.  You not only have a legal responsibility but the obligation to your workforce.  Negligent hiring, high-risk terminations, retention, security, and poor training open you and your organization to the possibility of a workplace violence incident.  Human resources plays a key role in your workplace violence plan through effective pre-employment screening, establishing discrete communications channels, an Employee Assistance Program and coordination with your security personnel regarding response plans.

Do not allow yourself to make these five critical mistakes:

• Denial and avoidance
• Not having a threat response plan
• Acting too hastily
• Lack of total workforce participation
• Insufficient assessment process

Coordinate a case assessment team and make sure they understand their purpose, make-up, objectives, and documentation measures.  The need to recognize the behavioral warning signs that signal potential trouble and that evaluation of behavior is not ‘profiling’.

Protective measures include:

• A facility security audit
• Obtaining local crime statistics
• Recording a history of incidents
• Personnel training
• General security awareness training
• An established liaison with local law enforcement.

Remember, ignorance does not relieve an organization of responsibility.  In summation, an organization has a Duty of Care responsibility to their employees and must plan, train, recognize, manage and respond to this growing problem within the business community.

View the original here.

Background: Employee Assigns Partial Blame For Tragedy On Employer
The facts of the case are unique. On November 20, 2012, an employee walked to her minivan in the company parking lot. Her estranged boyfriend, who was hiding in her minivan with a gun, chased her down and shot her in the back of the head. The employee survived and filed a lawsuit against the employer for negligence. On November 15, 2015, a Jackson County jury awarded $3.25 million against the employer.

Because of previous criminal activity in and around the property, the employer apparently had created an ad hoc security team for the facility with members drawn from its own employees. The head of the security team was the HR Director, although the employee alleged that neither she nor any of the security team members had any law enforcement or “security” training. The company had, however, installed surveillance cameras on the outside of the building with monitors located in the HR Director’s office.

The employee claimed that she had reported concerns about the boyfriend to the employer’s HR team on several prior occasions. On the day she was shot, the employee and the boyfriend had attended a court hearing regarding dismissal of a protection from abuse order against the boyfriend. When the employee arrived for work, she claimed she reported the dismissal of the protection order to the HR Director, who allegedly assured her the security team would be notified and would keep an eye out for the boyfriend.

However, the employee claimed in court that the HR Director failed to do as promised.  The employee’s attorney argued that the company had a policy of escorting employees to their vehicles when appropriate for safety reasons, yet no one did so on the day in question.

We did not handle the case and do not have first-hand knowledge of the facts, but the verdict is an extraordinary result. The employer tried to help the employee, but was still sued and hit with a huge verdict.

What Does This Mean For Employers?
Like the workplace shootings that have occurred with all-too frequency in recent years, this case demonstrates the horror of workplace violence and the difficulty employers face in trying to protect employees.

With the benefit of hindsight, the employer in this case might have considered other protective actions. These might have included giving the employee time off, sending her to the police, directly contacting the police, bringing in private security, or more carefully monitoring the parking lot. Certainly, this case suggests that you will want to be cautious about making any promises concerning security, and serves as a reminder that you should be careful to follow through on any such representations.

The sobering truth is there is no way to completely eliminate the risk of workplace violence. Even diminishing the risk is a great challenge for management.

With respect to managing legal risks, one possible step is drafting and implementing a valid arbitration program that covers all workplace-related events or claims. Such a program would likely lessen the chance of a successful legal claim against the employer, and virtually eliminate the risk of such a large monetary judgment against the employer. Training also can help human resources and other employees deal with potentially violent situations.

You should also check with your insurance broker to make sure your general liability policy covers such a situation involving violence in the parking lot after work.

What should you consider prior to terminating an individual?

1. Complete a threat risk assessment. What are the risks – high, medium and low?
2. Based on the risks what measures should be considered?
3. Does the individual have a social media footprint?
4. Ongoing monitoring of social media. What has been posted online for the last 30 days and what is happening post termination? Social media can be data mined and can paint a clear picture.  We have seen posts on social media such as “I used to have a job and life. Not anymore.” This individual threatened the HR manager and their family a few short hours after this post.
5. Will security be required? How much? When and where? If you have security are they equipped and trained to deal with workplace violence situations? All guards are not created equal?
6. Will surveillance be required to track movements following the termination in high-risk scenarios?

These are just a few of the many things to think about. Without taking time to understand the threat, you may find yourself in a risky situation. The costs of not having a plan can be huge.

Now ask these same leaders and their HR managers to provide a legal definition for the term “assault.” Getting an accurate definition likely will be more difficult. But it is a legal awareness that is becoming more important for managers to understand in supervising their hotel employees and ensuring that the workplace is not a breeding ground for litigation. While HR managers are accustomed to investigating employee complaints with an eye towards the common federal claims upon which they have been trained, they are now going to have to pay attention to emerging state law claims, as well.

Civil claims for assault and battery have existed for decades, but in recent years, lawyers representing employees have started to make use of these claims more frequently. Summarized below are the primary reasons for this shift:

Therefore, hotel leaders and their HR personnel should follow some specific steps to help protect against an assault and battery claim. Here are a few such steps:

Reprinted from the Hotel Business Review with permission from www.HotelExecutive.com

Although workplace attacks are never completely avoidable, there are concrete steps companies can take to protect employees and customers, while simultaneously reducing health care costs, absenteeism, and legal risks. Organizing and implementing a corporate domestic violence response program is easier and more cost effective than you might think. Here are three compelling arguments for the investment, beginning with the most urgent:

1) Safety

Of all the things that could possibly cause a female worker’s death on the job, from falls to electrocution, in most years the leader of the pack is homicide. In roughly 20% of these murders, the alleged killer was the victim’s current or former intimate partner (3). Such was the case in Orlando, FL on September 27, 2012. That was the day Michelet Polynice brought a handgun to the Quality Suites Inn where his ex-girlfriend Carlene Pierre was working at the front desk. Two weeks before, Polynice had been served with a restraining order for hitting Carlene with his car in the hotel’s parking lot. Carlene and her co-worker Vanessa Gonzalez-Orellanes were shot and killed instantly. Polynice then drove to the Westgate Lakes Resort parking lot where he shot and wounded Carlene’s best friend Jean Guerline before killing himself. This tragedy is, of course, a worst case scenario, but its occurrence proves that such an attack (or even a larger one) could be looming just around the corner.

Research has shown that most corporate security directors are already aware of the threat domestic violence in the workplace poses. In fact, in a recent survey, 94% of them ranked domestic violence as a high-security problem at their company (4). Yet oddly, another study found that although a significant majority of corporate executives recognized the devastating impact of domestic violence in the workplace, only 13% thought their company should address the problem. (5) If the safety of their employees and the general public is not enough to sway the C class, perhaps this next point will get their attention:

2) Cost

Being abused at home (and possibly at work) can result in a number of problems for employees, and thus multiple costly issues for their employer. For example, a victim of domestic violence may sustain injuries, causing them embarrassment and pain which then produces absenteeism and health care costs for their company. When they do return to work, they may arrive late or leave early, because their abuser has kept them up all night or sabotaged their childcare and transportation plans. While on the job, victims can suffer from anxiety, humiliation, and an inability to concentrate, due to threatening phone calls or visits from their abuser. The victim’s co-workers experience difficulty when these things happen as well, because they may be worried for her safety, frightened for their own, or resentful that they have to take up her extra work. Over time, these concerns can produce low morale and a high turnover rate. When translated to dollars, the cost of abuse becomes colossal: U.S. employers collectively pay out more than $5.8 billion each year in lost productivity, absenteeism, and health care costs related to domestic violence(6).

Employee victimization isn’t the only part of the equation that affects your bottom line. Although you may not know who they are, statistics say there are probably batterers working for your company right now. And according to one study, their abusive habits often crossover into the workplace. In addition to displaying bullying tendencies and aggressive behavior on the job, 78% of them admitted to using company resources and equipment to harass, threaten, or check up on their victim. (7) Furthermore, 42 percent admitted being late to work, and 48 percent had difficulty concentrating on the job as a result of their abusive behaviors. (8)

Curious about how much domestic violence may be costing your company? Check out the Texas Health Resources Domestic Violence Cost Calculator at https://www2.texashealth.org/dv/. Your accountants may be in for an expensive surprise.

3) Liability

If you’re starting to see the benefits of addressing domestic violence, but still aren’t sure you could get company wide buy-in, consider bringing on the only team members who might seal the deal: the corporate lawyers. Attorneys have a keen understanding of liability issues, and therefore can help to drive home the following point:  neglecting to take action against domestic violence could leave your company open to massive legal and financial risk. To begin with, there is the General Duty clause of the Occupational Safety and Health Act of 1970, which says employers must take steps to protect their workers from acts of violence. If the employer fails to do so, the result may be a substantial OSHA fine, or worse. Jury awards for inadequate security suits average $1.2 million nationwide and settlements average $600,000. (9) Considering that domestic violence makes up a quarter of all workplace violence, it’s an area well worth an employer’s focus. For example, when Francesia La Rose’s employer State Mutual Life Assurance Co. failed to take adequate action to protect her against a specific threat, they paid in both blood and money.  Francesia was murdered by her former boyfriend at her work site, causing not only heartbreak for her family and trauma to her co-workers but an $850,000 settlement by the company as well (10).

Other legal considerations include the possibility of a discrimination claim, an Americans with Disabilities Act complaint, or a wrongful termination lawsuit from a victim who has been fired, not hired, or passed over for a promotion due to the fact that he or she is a victim of domestic violence. A company can also be sued if it is determined that they violated a victim’s privacy, ignored harassment from other employees toward the victim, imposed sub standard or punitive job changes, or failed to allow a legitimate absence under the Family Medical Leave Act.

Don’t forget about those batterer employees either. Successful lawsuits in many states have proven that companies can be held liable for the dangerous acts of employees if they don’t use reasonable care in hiring, training, supervising, or retaining them when harm was in any way foreseeable.

A final but significant point for the hospitality industry to consider is that they are responsible not only for their employee’s safety but also that of customers, guests, and others invited onto their premises. For instance, if a hotel desk clerk issues a copy of a woman’s room key (without permission) to her estranged husband, who then enters the room and harms her, the hotel can be held accountable. And no one wants to imagine the cost in lives and lawsuits that could accompany a domestic violence related mass shooting in the workplace.

As leaders of our country’s workforce, directly or indirectly employing 1 out of every 17 Americans, the hospitality industry is in prime position to effect change and take a stand against domestic violence. Not only might lives be saved, but individual companies could profit through both hard and soft benefits. If you are considering addressing domestic abuse within your workplace but don’t know how to begin, please read part two of this article in the next issue when I explain the steps required to create an effective, in-house domestic violence program.

References

1. Report on Costs of Domestic Violence, Victim Services of New York, 1987
2. Workplace Crime 1992-1996, Bureau of Justice Statistics, July 1998.
3. Bureau of Labor Statistics’ (BLS) Census of Fatal Occupational Injuries (CFOI) 2003 and U.S. Department of Labor, Women’s Bureau, Facts on Working Women, No. 96-3, October 1996
4. Domestic Violence can become public matter int he workplace. Amy Pavuk and Arelis R. Hernandez. Orlando, Sentinel, Orlando, FL, September 28, 2012
5. Corporate Alliance to End Partner Violence, September 2007
6. The Cost of Violence in the United States. 2007. Centers for Disease Control and Prevention, National Centers for Injury Prevention and Control. Atlanta, GA
7. Employers Against Domestic Violence. http://employersagainstdomesticviolence.org/effects-on-workplace/workplace-dv-stats/
8. Maine Department of Labor. 2004. Impact of Domestic Offenders on Occupational Safety & Health: A Pilot Study.
9. Perry, P. 1994. Assault in the workplace. Law, May 1, 41.
10. 1Burke, D.F. January, 2000. When employees are vulnerable, employers are too. The National Law Journal.