URL: http://www.entrepreneur.com/management/legalcenter/legalbasics/article38746.html

Just after Christmas, a programmer at Edgewater Technology, an Internet consulting firm in Wakefield, Massachusetts, grabbed three guns, strode down the hall and shot seven co-workers. Two weeks later, an angry convenience store owner in Houston showed up at Amko Trading, one of his wholesalers, and shot the couple who owned it, their daughter and himself. All four died.

The scenario is frighteningly common. The Bureau of Labor Statistics reports more than 1,000 homicides in American workplaces occurred from 1992 to 1996. During the same time period, according to the U.S. Department of Justice, 2 million American workers per year were victimized while working. That in itself is worrisome for employers, whether they become targets themselves or have to cope with repercussions and remorse if an employee or customer is injured or killed. But then there's the legal side. When there's violence in the workplace, employers can be held liable for failing to screen job applicants carefully enough, failing to recognize problem employees and take action, or failing to maintain adequate security.

Consider a North Carolina case decided in May 1999. Four years earlier, ex-employee James Davis returned to a warehouse/manufacturing plant owned by Union Butterfield Corp. and Dormer Tools Inc. and started shooting. He murdered three em-ployees and wounded another. An Asheville County jury ordered the companies to pay $7.9 million to the families of two of the dead employees for failing to protect the workers. Although employees had told the man-agers of both companies that they thought Davis would return to murder people, the managers determined that he posed no significant threat and elected not to hire armed security guards for protection. After discussing the possible danger, they decided to simply lock the front door and tell the receptionist to keep an eye out for him-but no one ever relayed even that message.

The Union Butterfield case is unusual in that families of employees were able to recover damages in a civil suit. Normally, employees receive only workers' compensation for workplace injuries, whether accidental or criminal. Because two employers shared management of the same facility, the attorneys could hold one company liable for the death of employees at the other. In other cases, the injured employee would have to show that the employer intentionally ignored a known risk, or would have to go after another potentially liable party, such as a franchisor, landlord or property manager.

What if an employee injures or kills a customer, passerby or other third party? For instance, suppose a business sends a carpet cleaner to a private home and the man rapes the customer. Mark E. Brossman, an employment attorney with Schulte, Roth & Zabel in New York City, notes that, in the past, the law would not have held the employer liable because the employee acted outside the scope of his duty. But over the years, there's been a strong move to make employers more responsible, Brossman says. OSHA requires employers to maintain safe workplaces, and several states have similar statutes. Employers who knew or should have known there was danger yet did nothing to prevent it can be held liable. Likewise, courts are much more likely these days to hold companies liable for negligent hiring or retention of employees.

Clearly, you want to do whatever you can to avoid being the next company decimated by a deranged employee. But some of the preventive steps you might consider bump into another set of laws: those designed to protect the rights of job applicants and employees. These are:

    The Americans With Disabilities Act (ADA): Tom Harrison, publisher of Lawyers Weekly USA, notes that employers might be tempted to screen out mentally unstable job applicants by asking whether they have histories of mental illness or drug abuse. That would violate the ADA, which prohibits discrimination against people with physical or mental disabilities, real or perceived. "You can ask if they have a history of violence, but not if the question is likely to yield information about mental illness," Harrison says. "So you have to tread carefully."

    Defamation: You can check with prior employers, but if they terminated the employee, they might be hesitant to tell you why out of fear of a lawsuit over defamation. "In my expe-rience," Brossman says, "if a former employee was violent, the employer may not say so directly, but you can tell from the conversation." It helps if the person asking for the reference has been trained in how to listen for the unspoken message. "We recommend neutral references, but if someone is violent, you make an exception," he says. "If I don't tell what I know, I can be held liable for failure to warn."

    ADA again: If you have an employee whose personality changes and you're worried about mental instability, you might refer the employee to counseling through an employee assistance program. But be careful how you do it. Kathleen Keogh, an attorney with Calfee, Halter & Griswold LLP in Cleveland, notes that employers who require counseling as a condition for continued employment may get into legal trouble if they do so on the basis of a "perceived disability," which is protected under the ADA. In the case of threats or angry outbursts, though, it's the conduct itself that triggers the referral. "The reason is not a perceived disability but failure to relate in the workplace on a professional level," Keogh says.

But don't let fear of lawsuits smother common sense. "When in doubt, it's a lot better to have an ADA suit on your hands than a dead employee," Harrison says. "Better to make decisions to protect employees than to avoid litigation."

Here's how to reduce the chances of workplace violence:

    Adopt a zero-tolerance policy. Along with your policy against harassment, include a policy against weapons and violence. Showing off a new pistol or yelling and slamming doors would be immediate grounds for termination. Also, state that any employee who feels threatened or harassed must inform a supervisor.

    Screen carefully. When hiring new employees, do a criminal background check and call references. While you can't always predict who might turn violent, at least you'll have done what you can in case you have to defend your decision later.

    Train supervisors to recognize personality changes and warning signs. "You need to train people to recognize potential violence," says attorney Philip Berkowitz, head of the employment law department at Salans law firm in New York City. "People don't just snap without warning signs."

    Defusing disputes. The U.S. Postal Service, taking action on the cliché "going postal," has established a mediation program for employment disputes. To gain access, the employee has to claim harassment or discrimination. "When you go below the surface, they feel they've been disrespected or not heard," says Barbara Swartz, a professor at Touro Law School in Huntington, New York, who has mediated over 70 USPS disputes in New York or New Jersey in the past three years. "Resentment builds up-and mediation is an effort to stop this." Small businesses can engage private mediation services to defuse disputes that could turn deadly.

    Check and double-check security. Check for locks on back doors, adequate lighting and internal communications. Could an angry spouse or boyfriend charge in with a gun?

    Terminate with care. Have someone with you if you have to terminate a tinderbox employee, and consider engaging backup security in plain clothes. Treat the employee with dignity, and allow a way to depart without shame. Then change the locks.

		For more information on preventing employee violence, check out these Web sites: http://apps.opm.gov/publications: "Dealing With Workplace Violence-a Guide for Agency Planners." Although this report was written for government agencies, the principles apply to all businesses. www.osha-slc.gov/OshDoc/Additional.html: "Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments." www.dir.ca.gov/dosh/puborder.asp: "Model Injury & Illness Prevention Program for Workplace Security." Reviews the hazards of workplace violence.

---

Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

Contact Sources

• Lawyers Weekly USA, tharrison@lawyersweeklyusa.com, www.lawyersweeklyusa.com
• Salans, (212) 632-3918, pberkowitz@salans.com