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Workplace Violence: Legal Liability and Prevention

Pepper@Work

Author: Kali T. Wellington-James

8/17/2011

A version of this article was originally published in the August 2011 issue of The HR Specialist. It is reprinted here with permission.

In July 2010 the U.S. Bureau of Labor and Statistics reported that in 2008, 12 percent of the assailants in workplace shootings that resulted in homicides were co-workers and former co-workers. The causes of violence perpetrated by people against their co-workers are many: as examples, an employee who is disciplined or discharged may commit an act of violence against co-workers in a bout of rage or an employee who has a long history of animosity may resort to the use of violence, instead of resolving their problems in a peaceful manner. Recently, a Kraft Foods baking plant in Northeast Philadelphia encountered workplace violence firsthand. In September 2010 an employee was suspended from work after an incident with co-workers. The employee was escorted off the premises. The employee returned to the Kraft Foods bakery with a gun, and shot and killed two co-workers and wounded a third.

In today’s society, any employer can easily find itself in the position of Kraft Foods. It is vital that employers recognize signs of potential workplace violence and have proper protocols in place to prevent a potentially tragic situation. Taking the proper preventative measures, however, may be easier said than done. In hindsight, an employee’s off-handed comment or strange behavior may be easily recognized as a potential danger, but at the time, the comment or behavior may not have been seen as a potential threat. Moreover, in the heat of the moment, employers must also weigh the need to protect their employees against the rights of the threatening employee.

Potential Employer Liability

Generally, an employee cannot recover against his or her employer for workplace violence, except through a state workers’ compensation program, which provides the exclusive remedy for work-related injuries. However, most states workers' compensation laws have a personal animus exception that 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.”1 To determine whether a claim fits within the exception, “the third party or fellow employee’s act must have been motivated by his animosity against the injured employee. If the third party would have attacked a different person in the same position as the injured employee, the attack falls outside the [personal animus] exception.”2 For instance, within the workplace violence scenario, the employer may be liable to the victim-employee 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-employee.

When an employee engages in violence against other employees, the victim-employee also may recover from the employer based on the employer’s negligence. For example, 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.”3 For instance, the victim-employee can argue that the employer should be held responsible for the violent acts of the employee-assailant because it negligently supervised the employee.

If an employer is faced with a potentially violent situation between employees, it must take all appropriate and reasonable steps to diffuse a volatile situation, avoid injury and prevent potential liability. By taking preventative measures, however, employers also may find themselves with other legal woes. In particular, the Americans with Disabilities Act 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.4 If an employer suspects that a particular 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 because it took an adverse employment action even though the employee had not committed any violent acts.

In determining how to address a potentially violent situation, the employer must quickly assess the seriousness of the threat of violence and balance the potential risks of failing to take action against taking action that may be considered extreme.

Steps to Prevent Workplace Violence

Employers should establish and maintain a program to prevent workplace violence, to ensure that employees understand how to respond to potentially violent situations before they escalate. The following outlines steps that employers should consider when creating a program.

  1. Employers should ensure that they have 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.
  2. Employers must train all employees on how to recognize the risk factors for potentially violent situations. These training sessions must be widely publicized and should be mandatory for all employees.
  3. All employees should be familiar with how to report a potentially dangerous and/or violent workplace situation, and to whom to report those situations. Employers may consider creating a workplace violence prevention team that includes individuals from various departments, such as human resources, management, security and legal.
  4. The workplace violence prevention program should include 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.

Endnotes

1 E.g., 77 PA. CONS. STAT § 411(1) (West 2010).

2 Jackson v. Lehigh Valley Physicians, 5:08-cv-03043-GP, 2009 U.S. Dist. LEXIS 6936, at *25 (E.D. Pa. Jan. 29, 2009.

3 Lerew v. AT&T, Inc., No. 1:CV-07-1456, 2008 U.S. Dist. LEXIS 1094, 4-5 n.2 (M.D. Pa. Jan. 7, 2008) (citing Mullen v. Topper's Salon & Health Spa, Inc., 99 F. Supp.2d 553, 556 (E.D. Pa. 2000)).

4 42 U.S.C. § 1201(2) (a) – (c); 29 C.F.R. § 1630.2(g).

Kali T. Wellington

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.