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Workplace violence: Florida law opens liability beyond workers’ comp

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in Employment Background Check,Employment Law,Human Resources,Leaders & Managers,Performance Reviews,Preventing Workplace Violence

Twelve percent of all violent crimes committed in the United States occur in the workplace. And Florida employers face unique legal challenges in their response to such violence.

Reason: The state’s workers’ compensation law includes certain twists that could leave employers and managers exposed to personal liability in some cases.

Courts increase your responsibility

In most cases, workers’ compensation is the exclusive remedy for employees to obtain benefits for their work-related injuries. That “exclusive remedy” provision streamlines the benefits process because it’s not necessary to establish who was at fault. Whether it was the employer or the employee, the workers’ comp policy pays the benefits. No extensive litigation is necessary. At least, that’s the theory.

But recent Florida state court decisions have opened the door for workers injured through workplace violence to sue employers in court rather than using the workers’ compensation system.

The Florida Workers’ Compensation code establishes an intentional tort exception, which allows employees to sue their employers directly if they can prove the employer “should have known that its conduct was substantially certain to result in injury or death.”

Recent case No. 1: A school board agreed to admit a student that it knew had a history of violent behavior. The board didn’t notify the teacher of the student’s propensity for violence, and the student attacked her. The teacher sued the school board. The board tried to win dismissal of the case, arguing that the incident was covered under workers’ comp only. But the court ruled that the school board could be sued under the intentional-tort exception.

Recent case No. 2: A mental health facility won a case in which a violent patient attacked a doctor, causing her permanent brain damage. In that case, the court decided that “inherent unpredictability associated with mental illnesses” limits employer liability. In effect, unpredictability is part of the job, so workers’ comp is the exclusive remedy for work injuries.

Personal liability for work violence

Most employers do not have to deal with troubled students or mental patients. However, failure to screen out potentially violent employees can create the same type of liability.

Workplace security experts often emphasize the all-important background check on new hires. Unfortunately, many of the online background checks available have holes big enough to drive a tank through. So it is quite easy for a violent applicant to hide his past.

For that reason, supervisors must be on guard for employees’ warning signs of violent behavior. Employees who argue loudly or engage in disruptive behavior should face progressive discipline.

Tolerating such behavior could lead to negligent supervision lawsuits if that worker becomes violent.

Zero tolerance policies?

Some employers respond to similar situations with a “zero tolerance policy,” in which any infraction becomes punishable by termination. Generally, such policies are not wise.

Giving the employee an opportunity to cool down teaches him more about handling anger.

All disciplinary decisions should be thoroughly documented. But those documents must be managed in accordance with a number of federal laws. 

State mandates background checks for jobs involving kids, elderly

Florida has a stratified system that requires background checks for certain jobs in which employees work with the elderly or children. Specifically, it applies to health care workers, human service workers and teachers.

All applicants for such jobs must undergo a Level 1 screening which includes, at minimum:

  • An employment history check.
  • A statewide criminal history check.
  • A local criminal records check.

For those applying for positions identified in state statues as “positions of trust or responsibility,” usually nursing home or assisted-living facilities, a Level 2 screening is required that includes fingerprinting and a deeper criminal records check.

Employers not in these categories may use the employment screening method of their choice.  

Online resources: 

For a Florida workplace poster on preventing violence, go to www.dep.state.fl.us/admin/Safety/Posters/05_posters/Workplace_Violence.pdf.

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