Safe Harbor
As if it weren't bad enough to have someone "go postal" at your workplace, you can be held liable for the injury and death.
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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. Content Continues Below
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.
Originally published in the April 2001 issue of Entrepreneur Magazine
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