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Workplace violence: Georgia law opens liability beyond workers’ comp

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in Employment Background Check,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 Georgia employers face unique legal challenges in their response to such violence.

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

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

Potts case causes cracks in ‘exclusive remedy’ doctrine

Recently, fissures have appeared in the exclusive remedy concept that may result in employers facing personal liability for employees’ injuries and accidents.

In the important Potts v. UAP-GA. Ag. Chem case, the Georgia Supreme Court ruled that employers could be held individually liable for workplace injuries if they committed fraud when relaying details of the accident in a way that harmed the injured employee.

In that case, a worker was exposed to a chemical and became ill. He was hospitalized, but the doctors seemed to have the condition under control with a drug known to be an antidote to the chemical the worker claimed he was exposed to.

But a company official called the doctor and fraudulently told him that the company’s investigation showed the man couldn’t have been exposed to the chemicals in question. The doctor stopped administering the antidote, and the man died.

The employer tried to rely on the exclusive remedy argument, but the Supreme Court ruling left them open to personal liability.

Personal liability for work violence

It may not even take fraud to create personal liability. Some of the oldest workers’ compensation decisions in Georgia hold that employers who know of an employee’s incompetence or proclivity toward violence and do nothing about them may not be covered by workers’ compensation’s exclusive remedy umbrella.

That’s why employers should encourage employees to come forward to report violent behavior in the workplace.

Plus, while it’s important to perform background checks, don’t rely overly on them. Many of the online background checks available have holes big enough to drive a tank through. So it is easy for a violent applicant to hide his past.

For that reason, supervisors must be on guard to employees’ warning signs of violent behavior. Employees who argue loudly or engage in other disruptive behavior should face progressive discipline. Thoroughly document all disciplinary decisions.

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

Zero tolerance? Some employers have responded by establishing a “zero tolerance policy,” in which any infraction is punishable by termination. Generally, these aren’t good policies.

Giving employees an opportunity to cool down teaches them more about handling anger than enraging them with a pink slip.

Domestic violence: Get involved?

In many cases, workplace violence is the result of domestic violence that spills over into the job.

Georgia law allows employers to seek restraining orders against people who have committed violent acts against their employees or who have made credible threats against an employee. But the law doesn’t require employers to do so.

That leaves you with a dilemma: If you know of a credible threat and do nothing, you risk negligence. On the other hand, employers have a natural reluctance to get involved in employees’ personal lives.

Best bet: Establish a policy that dictates your actions when an employee tells you or a supervisor about past violence or a credible threat of future violence. The policy can set actions anywhere from barring the threatening spouse from the workplace by alerting security, to seeking a restraining order if the employee is unwilling to do so.

Further, the policy should dictate to employees the options available to them if they’re threatened, and the information they should share with employers. For example, if the employee has had a restraining order issued, the employer could require the worker to inform the employer so it could adopt adequate security measures.  

Online resource: Georgia’s State Board of Workers’ Compensation offers guidance on preventing workplace violence at www.gaworkerscomp.com/wna0899.htm

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