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, anInternet consulting firm in Wakefield, Massachusetts, grabbed threeguns, strode down the hall and shot seven co-workers. Two weekslater, an angry convenience store owner in Houston showed up atAmko Trading, one of his wholesalers, and shot the couple who ownedit, their daughter and himself. All four died.
The scenario is frighteningly common. The Bureau of LaborStatistics reports more than 1,000 homicides in American workplacesoccurred from 1992 to 1996. During the same time period, accordingto the U.S. Department of Justice, 2 million American workers peryear were victimized while working. That in itself is worrisome foremployers, whether they become targets themselves or have to copewith repercussions and remorse if an employee or customer isinjured or killed. But then there's the legal side. Whenthere's violence in the workplace, employers can be held liablefor failing to screen job applicants carefully enough, failing torecognize problem employees and take action, or failing to maintainadequate security.
Consider a North Carolina case decided in May 1999. Four yearsearlier, ex-employee James Davis returned to awarehouse/manufacturing plant owned by Union Butterfield Corp. andDormer Tools Inc. and started shooting. He murdered threeem-ployees and wounded another. An Asheville County jury orderedthe companies to pay $7.9 million to the families of two of thedead employees for failing to protect the workers. Althoughemployees had told the man-agers of both companies that theythought Davis would return to murder people, the managersdetermined that he posed no significant threat and elected not tohire armed security guards for protection. After discussing thepossible danger, they decided to simply lock the front door andtell the receptionist to keep an eye out for him-but no one everrelayed even that message.
The Union Butterfield case is unusual in that families ofemployees were able to recover damages in a civil suit. Normally,employees receive only workers' compensation for workplaceinjuries, whether accidental or criminal. Because two employersshared management of the same facility, the attorneys could holdone company liable for the death of employees at the other. Inother cases, the injured employee would have to show that theemployer intentionally ignored a known risk, or would have to goafter another potentially liable party, such as a franchisor,landlord or property manager.
What if an employee injures or kills a customer, passerby orother third party? For instance, suppose a business sends a carpetcleaner to a private home and the man rapes the customer. Mark E.Brossman, an employment attorney with Schulte, Roth & Zabel inNew York City, notes that, in the past, the law would not have heldthe employer liable because the employee acted outside the scope ofhis duty. But over the years, there's been a strong move tomake employers more responsible, Brossman says. OSHA requiresemployers to maintain safe workplaces, and several states havesimilar statutes. Employers who knew or should have known there wasdanger yet did nothing to prevent it can be held liable. Likewise,courts are much more likely these days to hold companies liable fornegligent hiring or retention of employees.
Complications
Clearly, you want to do whatever you can to avoid being the nextcompany decimated by a deranged employee. But some of thepreventive steps you might consider bump into another set of laws:those designed to protect the rights of job applicants andemployees. These are:
The Americans With Disabilities Act(ADA): Tom Harrison, publisher of Lawyers WeeklyUSA, notes that employers might be tempted to screen outmentally unstable job applicants by asking whether they havehistories of mental illness or drug abuse. That would violate theADA, which prohibits discrimination against people with physical ormental disabilities, real or perceived. "You can ask if theyhave a history of violence, but not if the question is likely toyield information about mental illness," Harrison says."So you have to tread carefully."
Defamation: You cancheck with prior employers, but if they terminated the employee,they might be hesitant to tell you why out of fear of a lawsuitover defamation. "In my expe-rience," Brossman says,"if a former employee was violent, the employer may not say sodirectly, but you can tell from the conversation." It helps ifthe person asking for the reference has been trained in how tolisten for the unspoken message. "We recommend neutralreferences, but if someone is violent, you make an exception,"he says. "If I don't tell what I know, I can be heldliable for failure to warn."
ADA again: If you havean employee whose personality changes and you're worried aboutmental instability, you might refer the employee to counselingthrough an employee assistance program. But be careful how you doit. Kathleen Keogh, an attorney with Calfee, Halter & GriswoldLLP in Cleveland, notes that employers who require counseling as acondition for continued employment may get into legal trouble ifthey do so on the basis of a "perceived disability,"which is protected under the ADA. In the case of threats or angryoutbursts, though, it's the conduct itself that triggers thereferral. "The reason is not a perceived disability butfailure 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 onyour hands than a dead employee," Harrison says. "Betterto make decisions to protect employees than to avoidlitigation."
Keeping The Peace
Here's how to reduce the chances of workplace violence:
Adopt a zero-tolerancepolicy. Along with your policy against harassment,include a policy against weapons and violence. Showing off a newpistol or yelling and slamming doors would be immediate grounds fortermination. Also, state that any employee who feels threatened orharassed must inform a supervisor.
Screen carefully. Whenhiring new employees, do a criminal background check and callreferences. While you can't always predict who might turnviolent, at least you'll have done what you can in case youhave to defend your decision later.
Train supervisors to recognizepersonality changes and warning signs. "You need totrain people to recognize potential violence," says attorneyPhilip Berkowitz, head of the employment law department at Salanslaw firm in New York City. "People don't just snap withoutwarning signs."
Defusing disputes. TheU.S. Postal Service, taking action on the cliché "goingpostal," has established a mediation program for employmentdisputes. To gain access, the employee has to claim harassment ordiscrimination. "When you go below the surface, they feelthey've been disrespected or not heard," says BarbaraSwartz, a professor at Touro Law School in Huntington, New York,who has mediated over 70 USPS disputes in New York or New Jersey inthe past three years. "Resentment builds up-and mediation isan effort to stop this." Small businesses can engage privatemediation services to defuse disputes that could turn deadly.
Check and double-checksecurity. Check for locks on back doors, adequatelighting and internal communications. Could an angry spouse orboyfriend charge in with a gun?
Terminate with care.Have someone with you if you have to terminate a tinderboxemployee, and consider engaging backup security in plain clothes.Treat the employee with dignity, and allow a way to depart withoutshame. Then change the locks.
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 Formore information on preventing employee violence, check out theseWeb sites:
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Steven C. Bahls, dean of Capital University Law School inColumbus, Ohio, teaches entrepreneurship law. Freelance writer JaneEaster 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
