Legal Affairs

by Jeff Feuquay, Associate Editor

I recently had the enlightening opportunity to hear Karen L. Long address the Oklahoma Public Personnel Association, a state chapter of IPMA. Long is a partner with the Tulsa, Oklahoma law firm of Rosenstein, Fist & Ringold, and has been one of the region's top litigators for almost 20 years. Her practice emphasizes collective bargaining, employment and education. She has served on the Public Employees Relations Board, responsible for resolving collective bargaining disputes between police and fire personnel and their municipal employers, and has been General Counsel for the Oklahoma Education Association. She has published articles and given talks on virtually the entire spectrum of personnel issues. At my request, she provided the following article for our members. Jeff Feuquay

Workplace Violence: Prevention and Response

Until a few years ago most individuals considered their workplace as a safe, protective environment. To the extent some individuals were concerned with safety while at work -- their concerns were a result of working conditions arising from the equipment they were required to operate or whether they received appropriate training to avoid natural hazards which may have accompanied employment in hazardous occupations. Few people, however, were concerned with the possible ramifications of mental instability of a co-worker. Few employers felt it necessary to implement programs dealing with workplace violence issues. In contrast, today few individuals are surprised, much less shocked, when they pick up a newspaper and read of instances of violence occurring at the workplace or in connection with employment.

In March of 1995 the Wall Street Journal reported: “Homicide was the second leading cause of death in the workplace in 1993, accounting for more than 1,000 deaths, and in the year ended July 1993, 2.2 million people were attacked at work.” In that same year concern with employment related violence had gained substantial attention resulting in issuance by the National Institute for Occupational Safety and Health an alert calling for action to prevent workplace violence. (NIOSH Publication No. 93-109, 1993). The increase in workplace violence has not diminished in the intervening period.

Workplace violence may occur as a result of a variety of factors such as mental illness of an employee; an individual’s history of violent behavior (known or unknown) to the employer or co-workers; significant personal problems including loneliness, financial distress, emotional discord, or death of a significant family member; extreme mood swings; deterioration of work performance and increasing pressure on the employee to perform at his or her prior level or at a level designated by the employer; and paranoia regarding co-workers’ or an employer’s objectives with respect to the employee as well as other factors.

Employers are caught in an increasingly tense and liability laden position with respect to preventing and responding to workplace violence or violence that may be somehow perceived as relating to the workplace. On a personal side, employees may view the employer as responsible for employee protection, safety, and welfare. Often times employees take their cues from the employer regarding their response to individuals who may be perceived as disturbed, mentally troubled, or strange. If the employer seems unconcerned with the employee's characteristics and fails to address them in an appropriate manner, employees, likewise, may simply ignore warning signs by an employee who may be dangerous and in need of assistance. Furthermore, employees who have observed an employer’s rude, arrogant, or dehumanizing treatment of an employee may believe that they can behave in a similar manner.

There are also a range of legal issues that attach to any discussion and assessment of roles and responsibilities in matters involving workplace violence. Distinct from the moral and ethical issues which may surface as between the employer and the employee the employer must also wrestle with a wide range of employment law issues which touch and concern an employee who may be manifesting symptoms or characteristics which may lead to incidents of violence. This environment is complex and its ramifications are not limited to an employer’s concerns involving responsibility for an employee who may be harassed or physically or mentally harmed by a co-worker. The employee, believed to be capable of violence against a co-worker or believed to be harboring resentment against the employer, may be inclined to claim employer liability for wrongful termination, privacy infringement, disability discrimination or other employment related theories of liability.

Prevention and response by the employer, in the current employment law environment, is neither simple nor are the steps to be taken clear. Effective employer action requires an employer who is constantly aware of the work force, able to appropriately investigate claims employee which are suggestive of characteristics which may be identified with an individual who may engage in violence, skilled implementation of intervention to neutralize an employee capable of or susceptible to violence, and willingness and ability to address needs for employee assistance. In addition, the employer must warn employees in the face of threats made against one or more employees. Furthermore, the employer must execute measures designed to ensure a secure working environment in line with the employer’s special knowledge of persons or conditions that may threaten safety or welfare.

Many employers wrongly conclude that the employer cannot be held responsible for violence by one employee against another employee. Accordingly, the employer may choose to remain removed from co-worker interpersonal problems until they reach a point where they actually pose an interference with the employer’s capacity to carry on its business. Likewise, employers who take responsibility for on-the-job conduct may believe that once employees leave the workplace the employer has no responsibility for employees. For example, two employees work together during the day. One employee reports that the other has made threatening statements. The employer has the supervisor conference with both employees and in the end advises the employee accused of threatening statements that the statements should immediately stop. Subsequently, the employee who made the original charges reports to management that while the co-worker has not continued to make the threatening statements during work time that the employee’s tires were slashed while her car was in the company parking lot, the employee has received numerous calls from the male co-worker at her home, and the co-worker has been observed outside of the employee's home late at night.

The employer, under the circumstances, can not merely ignore the connection between the employment environment and off duty climate created as a result of the employment relationship. While there may be ample discussion regarding the obligation of the employer under these circumstances the employer’s response should not be merely to ignore the off duty conduct and continue the working relationship as if the off-duty conduct of the charged employee was simply not the responsibility of the employer.

An employer’s legal responsibilities may arise under a number of different laws including federal and state Occupational Safety and Health Acts, tort laws involving vicarious liability and negligence, negligent hiring, retention, and supervision, failure to provide adequate security and similar legal theories.

Employers clearly have a duty to warn employees of the potential of danger. The duty to warn employees of a risk of harm has been upheld by the courts. This is especially true in instances where the employer is aware of a specific threat which has been made against an employee. A California case illustrates employer exposure in this area. In Duffy v. City of Oceanside, 179 Cal. App. 3d 666 (1986) the city hired a male who was on parole for kidnapping, rape and sexual assault. Shortly after this hire a female co-worker complained that the employee was sexually harassing her. Subsequently, the two employees formed a friendship which continued for four years until the male employee kidnapped and killed her. The City was aware of the friendship and the male employee’s propensity for violence. The victim’s children brought suit, alleging that the City was negligent because it failed to warn their mother of the male employee’s violent propensities. The court found that where an employer is aware of a danger directed towards a specific employee it has a duty to warn the employee of the danger. The court specifically noted that it was not creating a duty in all situations, but based upon the prior sexual harassment complaint, coupled with the male employee’s prior criminal conduct, the “threat” of harm to the female employee was reasonably foreseeable. Id. at 674 and 675.

This is not to say that an employer can or should disclose everything it knows or may have obtained regarding one employee to another employee. Care must be taken to refrain from disclosing private medical information or other private information, or false information. In the face of such disclosures the employer could be liable for disclosure of private facts, violation of the Americans with Disabilities Act, as well as defamation.

An employer has a duty to provide a safe premises. Clearly, an employer that has had no reason to believe that the premises is unsafe will have a reduced obligation to take measures to ensure safety. In contrast, an employer who has become aware of increased danger or risk to employees, regardless of the source of the information, will have a higher level of responsibility and increased risk of liability when the employer fails to take appropriate action, acts far too late in the face of a clear and present danger, or makes no response.

An employer concerned about responding to workplace violence should be prepared to vary the response based on the special facts of the matter. There is no one set of rules that can apply to the myriad of circumstances that confront employers. Generally employers should be concerned with taking care to educate employees regarding employer policies and particularly those that relate to potential violence in the workplace, identify potentially violent employees and begin appropriate early intervention to define and address problems which may erupt in violence, develop plans for dealing with outsiders who may utilize the workplace to vent private frustrations or angers such as may occur in domestic situations, and respond expeditiously and appropriately when instances involving violent or potentially violent behavior develop.

It is unlikely that instances of workplace violence will be viewed as a passing fad. The complexity of the work force combined with social factors and the desire by some employees to strike back at an employer or co-workers will continue. Employers can minimize workplace violence, exposure to bad publicity, as well as litigation by carefully responding to the warning signs exhibited by a potentially violent employee. Just as importantly, employers must be willing to respond to potential violence by adopting security measures when called for, by warning employees of potential personal danger, and by adopting and honoring policies designed to deal with factors which affect both the potential for violence and the creation of an environment where it can occur.

Karen L. Long; Rosenstein, Fist & Ringold; 525 S. Main, Suite 700, Tulsa, Oklahoma 74103-4500