Preventing Workplace Violence

Attorneys can guide a company in protecting employees from violence at work and reducing exposure in court.

By Joe Cavaluzzi, Contributing Writer On Jan 10, 2020

The need for policies and preparedness against violence in the workplace today is driven home by fears of mass shootings and attacks on employees by disgruntled colleagues, abusive spouses, or terrorists, for example.

Mass shootings – four or more people killed, excluding the shooter – injured 1,477 people in the US through November 14 of this year, killing 408 of them. While current year-to-date numbers of shootings that happened in the workplace are more elusive, the pattern of violent acts committed while people are on the job in recent years is alarming. Assaults are the fourth leading cause of death in the workplace and, in 2017, resulted in 18,400 injuries and 458 fatalities, according to the National Safety Council.

Companies are calling on attorneys to guide them through accessing the threat of violence and analyzing security measures – in place and needed – to prevent and mitigate it.

Guidance from the Law is Limited

Since 2017, Congress has proposed several bills, including the Workplace Violence Prevention for Health Care and Social Service Workers Act, H.R. 1309, which would require the U.S. Department of Labor to promulgate a specific workplace violence prevention standard under the Occupational Safety and Health Act (OSHA). Currently, however, no such standard exists, according to Alexa E. Miller, an attorney with Drinker Biddle & Reath of Florham Park.

“There is no federal law establishing a duty to prevent workplace violence against employees. However, the general duty clause under the OSHA requires an employer to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees,” Miller says. OSHA has issued non-binding guidelines that recommend five key elements of effective workplace violence prevention: management commitment and employee involvement; work site security analysis; hazard prevention and control; safety and health training; and recordkeeping and workplace violence prevention program evaluation.

New Jersey has created requirements for healthcare entities under the Health Care Professional Responsibility and Reporting Enhancement Act, which mandates companies notify the Division of Consumer Affairs about any employee impairment, incompetence or professional misconduct relating to patient safety, Miller notes. The act also requires healthcare businesses to check with previous employers about the disciplinary and employment records of current or prospective healthcare professionals within their own organizations.

A Cautious Approach

Julie Werner, a partner in the employment practice group of Roseland-based Lowenstein Sandler, says clients often initially come to the firm seeking advice when letting an employee go and they have concerns about how the person will react.

“Companies are a lot more cautious. Sometimes they’ll hire security or an off-duty plainclothes detective to be present at a company for a couple of days or weeks (after firing someone). Be proactive,” Werner advises. “You want to take steps to show you are not being negligent.”

Lowenstein Sandler represents companies of all sizes in five states, and Werner often advises clients to conduct active shooter drills and to be aware of who is coming on their property.

“It’s always good to have a relationship with the police department. That may not be as practical in cities, but it can be in suburban office settings,” she says. “Having established that, I’ve had clients who I advised to maybe call the police and let them know they are about to let someone go.”

She also advises background checks, especially in New Jersey, which several years ago passed the Opportunity to Compete Act, known as the Ban the Box Law, restricting employers from asking applicants about their criminal history on job applications.

“If you don’t do a background check, you don’t necessarily know who you’re hiring,” Werner says. “We have a duty to have a safe workplace. Background checks are a good thing.”

Companies can establish anti-violence policies such as prohibiting weapons at work. They can also get people to think about security at work so they practice common sense precautions, such as keeping doors locked, or giving a picture of an employee’s abusive spouse to security guards.

“Maybe you’re not supposed to hold the door open for somebody if you don’t know who they are,” she says.

Relying on Professionals

Jim Patterson, a partner at McElroy, Deutsch, Mulvaney & Carpenter and is co-chair of the labor and employment practice group, says companies usually put an anti-violence program in place working with a competent security firm. The cost depends on the size of the company.

“It can range from having guards to configuring your workplace, so it is secure and has monitoring assets. The other thing that is very important that doesn’t cost a lot is promulgating a written policy and periodically training the workforce in anti-violence, explaining that violence or threats of violence from anyone (employee, client or visitor) are not tolerated and that each employee has a duty to report threats or violence.”

Patterson’s firm often recommends clients develop plans for how to respond to incidents of workplace violence, including active shooter situations plans, which he says clients and their employees universally like and find reassuring.

Companies that don’t have a program or provide training risk liability of being sued for negligence or other claims for failing to maintain a safe workplace.

“While we still don’t have specific regulations from OSHA, we expect them soon and generally believe they will require anti-violence policies and training as well as possible basic security programs,” he says. “It’s still not clear what the specific OSHA regulations will be. Proposals have been pending for the past few years. Part of the reason is that the new administration may modify some earlier proposals.”

While some precautions may be common sense, Patterson advises companies will do better relying on a professional to help keep their workplace safe.

“It’s common sense, but the average business or average person’s common sense is limited. That’s why you need a security expert. They know things you probably wouldn’t even think of. It’s not legally required – although at some point it may well be – but it’s invaluable,” he says.

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