Violence in the Workplace

The statistics on workplace violence are alarming. On average, one in six violent crimes is committed in the workplace. Studies also show that 20 people are murdered and 18,000 are assaulted at work each week. A 1996 survey by the Society of Human Resource Management found that about half of the managers surveyed knew of at least one violent incident at their organization in the past two years.

Beyond the loss of life and extreme emotional toll, workplace violence can generate significant legal costs. Many employees and third parties are suing employers for the effects of workplace violence. The National Safe Workplace Institute estimates that the average cost to employers of a single episode of workplace violence can amount to $250,000 in lost work time and legal Liability: How violence in the workplace can affect your business? On May 4, 1999, a North Carolina jury concluded that the defendant-employers failed to take adequate precautions for the safety of their employees and awarded $7.9 million to the families of two men killed at work by an estranged employee. Allman v. Dormer Tools, No. 97CVS1161 (N.C. Sup. Ct., May 4, 1999); Knox v. Union Butterfield, No. 07CVS2012 (N.C. Sup. Ct., May 4, 1999).

On April 28, 1999, the Oregon Court of Appeals upheld a jury award for $1.25 million for punitive damages and $275,000 for compensatory damages to an injured employee whose supervisor knew of a patient's violent history and refused to return to work, instructing the plaintiff to remain alone at the facility, after she had been assaulted by a patient. MacCrone v. Edwards Center, Inc., 980 P.2d 1156 (Or. Ct. App. 1999).

Additionally, Allstate Insurance was sued by families of victims of workplace violence for failing to tell the Fireman's Fund in a reference check about a former employee's unstable mental condition and that he frequently brought guns to work. Carl Cronan, Workplace Violence Can be Costly in Many Ways, The Business Journal, December 21, 1998.

Florida recently enacted legislation to help employers decrease liability and the potential for workplace violence. Failure to take advantage of this new legislation may be costly, both in liability and harm to employees (Fla. Stat. § 768.096). This new law creates a presumption against negligent hiring if an employer conducts a reasonable background investigation.

While Florida courts have yet to clarify this law, in order to ensure compliance, the background investigation should include: (a) a criminal background investigation through the Florida Department of Law Enforcement, (b) a reasonable effort to contact an applicant's references and former employers, (c) a job application with questions about criminal convictions and several claims for intentional torts, (d) with written authorization, a check of his or her driver's license record if relevant to the work the employee will be performing and can reasonably be obtained, and (e) an interview of the prospective employee.

Employers conducting a criminal background check on a prospective employee can contact the Florida Department of Law Enforcement and receive a report of the individual's criminal history in Florida.

In conducting a reference check, Florida tort reform also establishes immunity for employers who provide information about a current or former employee to a prospective employer unless it is shown by clear and convincing evidence that the information disclosed was knowingly false or violated any civil rights of the employee. (Fla. Stat. § 768.095.)

In addition to maintaining strict hiring policies, employers also should establish a written workplace anti-violence policy and security procedures with zero tolerance for any incidents of workplace violence. Liability for workplace violence does not stop at just claims for negligent hiring, there is also potential for liability under the theory of negligent retention of an employee. Similar to employers who have procedures for investigating workplace harassment, employers should also have a system in place to deal with claims of workplace violence. The employer's written policies and security procedures that establish zero tolerance for this kind of behavior should list exactly what type of conduct is prohibited. In addition, employers should train supervisors and managers on how to recognize a problem and how to adequately resolve it. Remember always maintain an environment that is both open to communication and respectful to all employees.

It is important to keep in mind that while attempting to keep a workplace free from violence, an employer must balance this with a workplace that is also free of discrimination. Despite the protections of the Florida Tort Reform, employers should still be cognizant that the Federal Civil Rights Act of 1964, as amended, prevents an employer from discriminating against applicants or former employees for race, age, marital status, religion, ethnic background, or another protected category.

While implementing the new requirements under this legislation will not prevent all acts of workplace violence, with an average of 20 employees being killed each week in the workplace, employers cannot afford to risk a substantial verdict or, more importantly, lives, by failing to use these new protections. As an employer, you can help to minimize your risk by doing the following.

Maintain strict hiring policies.
Establish written workplace anti-violence policies and security procedures with zero tolerance for any instance of violence.
List prohibited conduct.
Monitor current employees’ behavior.
Train managers and supervisors how to recognize and resolve problems.
Maintain a working environment that is open to communication and respectful to all employees.
Balance a violence-free workplace with employee rights.

If you find yourself struggling to wade through consult an employment law attorney.