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How to prevent workplace violence–and manage legal liability

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in HR Management,Human Resources,Leaders & Managers,Preventing Workplace Violence

by Kali T. Wellington, Esq.

According to the latest numbers from the U.S. Bureau of Labor Statistics, 12% of assailants in fatal workplace shootings are co-workers or former co-workers.

A year ago, a Kraft Foods baking plant in Northeast Philadelphia en­­countered workplace violence first­­hand. In September 2010, an employee was suspended following an incident with fellow co-workers. The employee was escorted off the premises. Then he returned with a gun, killing two co-workers and wounding a third.

Sadly, violence can strike any workplace. That’s why it’s so important to be able to recognize the signs of potential trouble and have protocols in place to prevent a poten­tially tragic situation. That’s often easier said than done.

In hindsight, it’s often easy to recognize the warning signs in an employee’s off-hand comment or strange behavior. But at the time, those words or deeds may have seemed innocuous.

Plus, efforts to protect all employees must be weighed against the rights of the potentially threatening employee.

Workers’ comp not enough

Generally, employees who are victims of workplace violence can find monetary relief only through a state workers’ compensation program, which provides the exclusive remedy for work-related injuries.

However, most states, including Pennsylvania, have a personal animus exception to workers’ comp rules. The exception excludes injuries caused by “an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment.” Workers’ comp won’t cover those injuries.

It also means the employer may be liable if the injury was caused by a disgruntled employee who was ter­minated or faced disciplinary action unrelated to any personal issue that he or she may have had with the victim.

Negligent-supervision liability

In those cases, the victim may sue the employer based on the employer’s negligence.

Specifically, Pennsylvania law allows a claim against an employer for negligent supervision of an employee “where the employer fails to exercise ordinary care to prevent an intentional harm to a third party which (1) is committed on the employer’s premises by an employee acting outside the scope of his employment and (2) is reasonably foreseeable.”

For instance, the victim can argue that the employer should be held ­responsible for the violent acts of a co-worker because it negligently supervised the employee.

Preventing employer liability in such cases requires taking all appropriate and reasonable steps to defuse a volatile situation and avoid injury.

Note: By taking preventive measures, employers may also find them­selves with other legal woes. In ­particular, the ADA and the Penn­syl­vania Human Relations Act protect employees who are disabled, regarded as disabled or who have a record of a disability, including those with mental disabilities.

If an employer suspects that an employee may commit an act of violence and consequently takes an adverse employment action against him or her, then the employee may have a potential claim for disability discrimination on the basis that the employer “regarded” him or her as having a mental disability.

In determining how to address a potentially violent situation, the employer must quickly assess the seriousness of the threat of violence.

Preventing workplace violence

Employers should establish and maintain a program to prevent workplace violence and ensure that employees understand how to respond to potentially violent situations before they escalate.

Consider taking these measures when creating a violence-prevention program:

  • Create a written policy that spe­cifically prohibits all types of workplace violence and threats of violence. All employees should be required to sign the written policy when they are hired.
  • Train all employees how to recognize the risk factors for potentially violent situations. Be sure to publicize your training sessions and make them mandatory for all employees.
  • Explain how employees should report a potentially dangerous or violent workplace situation. Be sure they know to whom they should report their concerns.
  • Create a workplace violence-­prevention team that includes individuals from various departments, such as HR, management, security and legal.
  • Develop emergency procedures to use in the event of a violent situation. The program should have a response team that is able to control the situation and assist others to safety.

_____________________________________

Author: Kali T. Wellington is an associate in the Labor and Employment Group of Pepper Hamilton LLP and concentrates her practice in counseling employers on labor and employment matters. Kali can be reached at (610) 640-7801 or wellingtonk@pepperlaw.com.

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