CHAPTER 29
TERROR & VIOLENCE IN THE
WORKPLACE

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§ 29.1

I. RECENT TRENDS & DEVELOPMENTS

§ 29.1.1

A. INTRODUCTION

In 2004, several incidents of workplace violence made headlines throughout the country—particularly in relatively small cities and towns. In Caribou, Maine, a 19 year old male coffee shop employee admitted to beating and kicking a 20 year old female coworker in the coffee shop restroom, and then leaving her to die of injuries while he continued to serve customers. In November 2004, in Chapel Hill, South Carolina, a man killed his wife in the parking lot of the hospital where she worked, and then killed himself. The man had violated a restraining order his wife held against him, and was carrying a handgun, despite a federal law that prohibited him from doing so. In a similar occurrence in Darby, Montana, a woman's estranged husband confessed to killing her in the parking lot of the restaurant where she worked.

Perhaps as a result of these and other similar instances, states are increasingly enacting legislation to protect victims of domestic violence in the workplace. The killing in South Carolina, however, demonstrates that in some cases, even these measures may not be enough to prevent domestic violence from reaching the workplace. Terror and violence in the workplace continues to be an ongoing concern for employers seeking to provide a safe working environment. Violence and terror in recent events have led to increased scrutiny of employer preparedness for, and responses to, workplace crises.

Also in 2004, the federal ban on assault weapons, which limited the ability of private citizens to purchase military style weapons, expired. Although it is too early to determine the effect of the ban's expiration on violence in general, and on workplace violence in particular, it may impact the frequency and types of workplace violence in coming years.¹

§ 29.2

II. OVERVIEW OF THE PROBLEM OF WORKPLACE VIOLENCE

The National Institute for Occupational Safety and Health defines workplace violence as any physical assault, threatening behavior, or verbal abuse occurring in the workplace. A workplace may be any location, either permanent or temporary, where an employee performs any work-related duty including, but not limited to, the building and surrounding perimeters, such as parking lots, field locations, clients' homes, and traveling to and from work assignments.

While the number of workplace homicides has decreased in the past few years, no one can ignore the reality that violence is still a serious issue for our communities, our schools, and our workplaces. According to the National Crime Victimization Survey (NCVS), 1.7 million violent crimes occurred in the workplace between 1993 and 1999, including 1.3 million simple assaults, 325,000 aggravated assaults, 36,500 rapes and sexual assaults, and 70,000 robberies. According to the NCVS, workplace violence accounted for 18% of all violent crime between 1993 and 1999.²Employers are responding with added security measures and preventative training.

The Bureau of Labor Statistics' Census of Fatal Occupational Injuries reports 631 workplace homicides in 2003, which is an increase from 2002, when there were 609 homicides (the lowest number since the Bureau began its Census).³Overall, between 1994 and 2003, work-related homicides decreased by 42%.⁴According to the most recent U.S. Department of Labor Study, shootings accounted for 77% of all workplace homicides. Homicides represented 27% of all fatal workplace injuries among women, as compared to 10% among men.⁵

§ 29.2.1

A. EMPLOYERS' DUTIES & LEGAL OBLIGATIONS

§ 29.2.1(a)

Fed-OSHA Requirements & Guidelines

The Federal Occupational Safety and Health Act (Fed-OSH Act or "the Act") contains a general duty clause which requires employers to provide their employees with a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm to . . . employees."⁶The Occupational Safety and Health Administration (Fed-OSHA) has used this General Duty Clause to encourage employers to take steps to prevent injury to employees. As discussed below, Fed-OSHA has also developed guidelines that focus on preventing workplace violence in healthcare and social service operations, and has developed other guidelines that apply to the late-night retail store industry. Fed-OSHA has noted that it will continue to issue citations for workplace violence under the General Duty Clause where criminal activity endangers workers.

A 1996 Fed-OSHA compliance directive explains how Fed-OSHA investigates workplace fatalities. This directive aims to streamline and consolidate Fed-OSHA's fatality inspection procedures to process these serious cases uniformly. Specifically, Fed-OSHA must determine whether a fatality occurred, whether safety and health regulations were violated, whether the violations contributed to the fatality, and whether the employer knowingly violated the standards. Criminal penalties may be imposed against an employer who is convicted of having willfully violated a Fed-OSHA standard, rule or order, when the violation caused the employee's death. Family members of the victim will be contacted early in the investigation to obtain information about the incident. The Fed-OSHA Area Director must obtain abatement information from the employer and "an assurance that appropriate safety and health programs have been put in place to prevent the hazards from recurring." States with their own safety and health programs are encouraged to follow the Fed-OSHA directive, but they are not required to do so.⁷

§ 29.2.1(a)(i)

OSHA Fact Sheet: Workplace Violence

In 2002, Fed-OSHA published a brief, two-paged Fact Sheet entitled Workplace Violence. Although all of the information it addresses is discussed in greater detail in other Fed-OSHA publications, it is a convenient resource for an employer searching for initial direction in creating policies and procedures to prevent or limit violence in the workplace.

The Fact Sheet suggests establishing a zero-tolerance policy toward workplace violence by or against employees. It also recommends that employers ensure that all employees know the policy and understand that claims of workplace violence will be investigated and promptly remedied. In addition, the Fact Sheet provides tips for employees to protect themselves, such as alerting supervisors to concerns about safety or security, and carrying minimal amounts of money.

§ 29.2.1(a)(ii)

Guidelines for Healthcare Institutions

In 2004, Fed-OSHA revised its guidelines specific to violence inflicted by patients or clients against healthcare and social service workers,⁸although these guidelines are useful for all employers and should be reviewed for ideas on steps to prevent workplace violence. Fed-OSHA states specifically that the guidelines are not a new standard or regulation and that they are advisory in nature only. The guidelines are potentially troublesome, however, because they note that Fed-OSHA will rely on the General Duty Clause for enforcement authority. The guidelines state: "Employers can be cited for violating the General Duty Clause if there is a recognized hazard of workplace violence in their establishments and they do nothing to prevent or abate it."

The guidelines recommend a violence prevention program comprising five main components:

1. management commitment and employee involvement;
2. work site analysis;
3. hazard prevention and control;
4. safety and health training; and
5. record keeping and program evaluation.

According to Fed-OSHA, these guidelines are particularly useful to healthcare and social service workers because of several unique risk factors they face, including:

• The prevalence of handguns and other weapons among patients, their families or friends.
• The increasing use of hospitals by police and the criminal justice system for criminal holds and the care of acutely disturbed, violent individuals.
• The increasing number of acute and chronically mentally ill patients now being released from hospitals without follow-up care, who have the right to refuse medicine and who can no longer be hospitalized involuntarily unless they pose an immediate threat to themselves or others.
• The availability of drugs or money at hospitals, clinics and pharmacies, making them likely robbery targets.
• Situational and circumstantial factors such as unrestricted movement of the public in clinics and hospitals; the increasing presence of gang members, drug or alcohol abusers, trauma patients, or distraught family members; long waits in emergency or clinic areas, which lead to client frustration over an inability to obtain needed services promptly.
• Low staffing levels during times of specific increased activity such as meal times, visiting times and when staff is transporting patients.
• Isolated work with patients during examinations or treatment.
• Solo work, often in remote locations, particularly in high crime areas, with no back-up or means of obtaining assistance.
• Lack of training for staff in recognizing and managing escalating hostile and assaulting behavior.
• Poorly lit parking areas.

Additionally, in 2002, The National Institute for Occupational Safety and Health (NIOSH), a research agency of the U.S. Department of Health and Human Services' Centers for Disease Control and Prevention, issued a publication entitled Violence: Occupational Hazards in Hospitals.⁹The publication explains that violence in hospitals is often different than in other industries because it results from patients and families who feel frustrated, vulnerable, and out of control. The publication addresses types of violence, and their sources, which are often particular to hospital settings, as well as risk factors that may be unique to hospitals. In terms of prevention strategies, the publication focuses on environmental designs of the building and administrative controls. It also provides a list of safety tips for hospital workers.

§ 29.2.1(a)(iii)

Guidelines & Statutes for Late-Night Retail Establishments

Statistics indicate that workers in the late-night retail industry face a higher risk of workplace violence than workers in virtually any other industry. Responding to these increased risks, in 1998 Fed-OSHA adopted recommendations to help prevent crime in late-night retail establishments.¹⁰The states of Washington, Florida, and New Mexico have taken it a step further by enacting statutes or regulations to address the problem. These are discussed below.

Fed-OSHA's Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments are aimed at helping retail employers design, select, and implement prevention programs based on the specific risk factors present in their workplaces. The Recommendations specifically state, however, that they are not intended to establish a legal standard of care with respect to workplace violence and do not impose any new legal obligations or constraints on employers.

The Recommendations consist of five basic elements from which an employer can construct a violence prevention program tailored to its specific needs. The five components include:

1. Management commitment and employee involvement: management and employees should work together to structure and operate a violence prevention program. For example, management should create and disseminate a policy expressly disapproving of workplace violence, and employees should participate by developing procedures to minimize risks of violence in daily business operations.
2. Work site analysis: perform in-depth analysis, which is designed to identify common risk factors in retail establishments; determine existing and potential hazards for workplace violence; review records that may shed light on the magnitude and prevalence of the risk of workplace violence; evaluate the effectiveness of any existing security measures; and institute a system of periodic safety audits.
3. Develop measures to protect employees: outline previously identified risks of injury and violent acts and implement violence prevention strategies, engineering controls, administrative and work practice controls, and postincident response evaluation programs.
4. Training and education: provide all employees with education and training regarding the potential security hazards and the procedures for protecting themselves and their coworkers.
5. Evaluate the workplace violence prevention program: develop procedures to maintain records of injuries, illnesses, incidents, hazards, corrective actions, and training. Encourage management to communicate lessons learned from the evaluation process to all employees and to discuss changes in the program during regularly scheduled meetings.

In addition to the above five basic components of an effective violence prevention program, the Recommendations include several practical resources for use by employers, including a sample workplace violence Factors and Controls Checklist, an incident report and suspect description form, sources of assistance, and a comprehensive OSHA office directory.

Although they do not carry the weight of a regulation or new standard, the Recommendations suggest that employers implement one or more, or all, of the following:

• Improve visibility by providing adequate lighting and installing mirrors.
• Keep signs and shelves low.
• Install drop safes and signs stating that little cash is kept on hand.
• Conduct video surveillance.
• Provide silent and personal alarms.
• Establish emergency procedures, including communication systems, training, and education.
• Restrict customer access by reducing store hours and closing portions of the store.
• Take precautions when going to remote, isolated spots such as garbage areas and outdoor freezers.
• Lock doors not in use.
• Increase staffing during high-risk periods.
• Install bullet-resistant enclosures.¹¹

Guidelines for Taxi & Livery Drivers

In May 2000, Fed-OSHA published a fact sheet entitled Risk Factors and Protective Measures for Taxi and Livery Drivers.¹²Citing statistics from the National Institute for Occupational Safety and Health (NIOSH) and the Department of Justice, the publication noted that taxi drivers are 60 times more likely than other workers to be murdered while working. Further, only two other professions, police and private security guards, experience higher levels of nonlethal assault.

Fed-OSHA identified several factors that put drivers at risk. These include working with the public, with cash, alone, at night, and in high-crime areas. To reduce the risks encountered by drivers, Fed-OSHA recommended several safety measures be taken. Some of the safety measures may not prevent injury but are intended to speed response time when an incident occurs. Many of the recommendations involve utilizing technology to reduce the risk of violence, including the use of global positioning systems, in-car surveillance cameras, silent alarms, caller ID to help trace the location of fares, and open-microphone radios. Fed-OSHA also recommends using cashless fare collection systems such as debit and credit cards to discourage robbers.

The Risk Factors and Protective Measures for Taxi and Livery Drivers was not intended to create a legal standard of care. While the fact sheet is intended to apply to taxi and livery drivers, all employers should consider technology-based solutions in preventing workplace violence.

§ 29.2.1(a)(v)

Guidelines for Emergencies

In 2001, Fed-OHSA revised its booklet entitled How to Plan for Workplace Emergencies and Evacuations.¹³The publication addresses various types of workplace emergencies, including civil disturbances and workplace violence resulting in bodily harm and trauma.

Fed-OSHA suggests that employers brainstorm worst-case scenarios for their business. Once potential emergencies are identified, an employer is in an appropriate position to determine, in advance and with logic, how to appropriately protect itself and its employees from harm or further harm. Proper considerations include determining how to alert employees to an emergency, developing evacuation policies, procedures and routes, accounting for employees, planning for rescue operations, providing medical assistance, and training employees.

Although not all of the suggestions in the booklet will apply to every employer, to best be prepared, an employer should be aware of the various kinds of emergencies most likely to affect them before they happen.

The booklet does not alter or determine compliance responsibilities as described in the OSHA standards and in the Fed-OSH Act itself.

§ 29.2.1(a)(vi)

U.S. Office of Personnel Management (OPM) Guidelines

Another federal government agency, the United States Office of Personnel Management (U.S. OPM), has produced a guide titled Dealing With Workplace Violence-A Guide For Agency Planners.¹⁴The guide is a product of the Interagency Working Group on Violence in the Workplace, a multidisciplinary group of federal government professionals formed by the U.S. OPM in response to the growing problem of workplace violence in the public sector, particularly the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The guide was updated after the terrorist attacks on September 11, 2001 and the subsequent bio-terrorist anthrax attacks.

The U.S. OPM guide is intended to assist those responsible for establishing workplace violence initiatives at government agencies. It introduces a process for developing an effective workplace violence program and guides an agency's planning group through the basic steps of developing programs, policies, and prevention strategies. The guide discusses three basic steps for workplace violence programs, which include program development (forming a planning group), development of a written policy, and prevention techniques and identification measures. When an incident of workplace violence occurs, the guide proposes a six-step program: (1) fact-finding and investigation; (2) threat assessment; (3) employee-relations considerations; (4) employee assistance program considerations; (5) workplace security; and (6) organization recovery following an incident. The U.S. OPM recommends that employees know how to report incidents of violence or threatening or disruptive behavior and that they be provided with quick reference emergency numbers to use during a crisis or emergency.

The guide also presents a set of case studies to use in analyzing agency needs, planning programs and training, and to provide practical tips in responding to workplace violence. Finally, the guide provides an extensive list of federal government and nongovernment workplace violence and prevention resources.¹⁵

§ 29.2.1(b)

Negligence Theories

In addition to the OSH Act's General Duty Clause, employers may be subjected to liability for acts of workplace violence based on various negligence theories, including negligent hiring, negligent training, negligent supervision, negligent retention, negligent recommendation or misrepresentation, and other general common law duty theories.

§ 29.2.1(b)(i)

Negligent Hiring

The tort of negligent hiring is based on the principle that an employer has a duty to protect its employees, customers, and the general public from injuries caused by employees whom the employer knows, or should know, pose a risk of harm to others.¹⁶The duty is breached when an employer fails to exercise reasonable care in ensuring that its employees and customers are free from risk of harm from unfit employees. Thus, an employer may be found to have been negligent in selecting an applicant for employment when, for example, the employer neglected to contact the applicant's former employers or to check references, and such an investigation would have demonstrated that the applicant had a violent propensity or was otherwise unfit for the job.

Many state courts have recognized the tort of negligent hiring and have placed the burden on employers to investigate applicants to prevent the risk of violent acts directed at employees and others.¹⁷Negligent hiring liability can be based on violence that occurred outside the scope of employment. The proper focus is not whether the employee was acting within the scope of employment, but whether, in view of the employee's known characteristics, his or her violence was reasonably expected or anticipated by the employer. As a result, negligent hiring and negligent retention liability may exist even where respondeat superior liability does not.¹⁸

There are several steps that employers should take to protect themselves against liability for negligent hiring. These steps include:

• Carefully review all information on employment applications and resumes prior to hiring an applicant.
• Question applicants about any gaps in the individual's employment history - such gaps could be due to the individual's serving time for violent crimes.
• Contact every prior employer to verify dates of employment and positions held. Obtain from prior employers information such as the applicant's reliability, honesty, and tendency to engage in violence.
• Document investigative and screening efforts and all information received from prior employers and references, even if efforts to obtain such evidence have proven unsuccessful.
• Do not offer an applicant employment until the screening process is complete.
• Employment applications should advise the applicant that omissions, misrepresentations, or falsification of information will result in the rejection of the applicant or termination of employment.
• Consider performing background checks, including criminal record checks, on all applicants or on all applicants for particular positions.

Employers should also be cognizant of the fact that federal laws and the law of many states severely restrict preemployment inquiries, investigations, and testing. Specifically, the Fair Credit and Reporting Act (FCRA)¹⁹places restrictions on background checks done by third parties.²⁰In addition, many states strictly limit the investigation and use of prior criminal records in making hiring decisions. For example, California Government Code section 6254 purports to prohibit the release of arrest records for commercial purposes. The United States Supreme Court upheld the constitutionality of section 6254.²¹

§ 29.2.1(b)(ii)

Negligent Training

Courts in certain circumstances have also recognized a cause of action for an employer's negligent training of its employees that result in injury to a third person. For example, California courts have recognized that a medical university owes a duty to patients who are under the care of residents to see that the residents receive proper training and supervision.²²

§ 29.2.1(b)(iii)

Negligent Supervision & Retention

Some courts may also recognize the theory of negligent supervision when one alleges that the employer should have taken reasonable care in supervising an employee who is threatening violent conduct.²³For example, the Texas Supreme Court also has held that an employer of a visibly intoxicated employee has a duty to restrain the employee from causing harm to third parties.²⁴A cause of action for negligent supervision exists if the claimant can establish that the employer failed to exercise ordinary care in supervising the employee and that negligence proximately caused the claimant's injuries.²⁵

Similarly, an employer may become exposed to liability for negligent retention when the employer is aware, or should be aware, that an employee is unfit, but fails to take action such as investigating, discharging, or reassigning the employee.²⁶As with negligent hiring claims, an employer need not have actual knowledge of the employee's lack of fitness to be held liable for negligent retention; even if an employer has only constructive knowledge, liability may attach.²⁷

§ 29.2.1(b)(iv)

Negligent Recommendation or Misrepresentation

Courts around the country have also held that an employer may be liable under a theory of negligent recommendation or misrepresentation for providing a good reference for a problem employee. For example, a Pennsylvania court held that a school that previously employed a perpetrator may be liable when it informed another school that the employee's performance was satisfactory, even though the employee had resigned because of sexual misconduct toward a student.²⁸

A California court also noted that even absent a duty to provide information, when an employer does provide information, the employer must tell the truth and not suppress or misrepresent facts within its knowledge.²⁹

Employers should exercise extreme caution in providing references for employees with violent tendencies. Although no court has yet ruled that prior employers must disclose violent tendencies to other employers, this issue has resulted in minimal litigation. Employers who consistently follow a policy of providing no references, or of merely confirming a former employee's name, dates of employment, and position, minimize their risk of future liability.

§ 29.2.1(b)(v)

General Common Law Duties

Finally, courts have suggested that "common-law imposes upon all employers the duty to maintain a safe workplace — including the specific duty to maintain a workplace where employees are free from assaults by coworkers or third parties."³⁰Such a duty would require an employer to take all reasonable precautions to avoid workplace violence.

§ 29.2.1(c)

Other Potential Sources of Liability

§ 29.2.1(c)(i)

Duty to Warn

Courts may recognize a duty by an employer to warn employees who are the targeted victims of workplace violence. The foundation of such a duty may arise from judicially created public policy. For example, the California Supreme Court held that when a psychotherapist determines that a patient presents a serious danger of violence to another person, the psychotherapist has a limited duty to break the confidentiality of the professional relationship and make reasonable efforts to communicate the threat to the targeted victim or victims and also to a law enforcement agency.³¹If the psychotherapist cannot communicate with the intended victim(s), the psychotherapist must make reasonable efforts to inform others likely to notify the victim(s).

Courts in many other states that have considered the issue have followed the Tarasoff decision and imposed a duty to warn on psychotherapists in similar factual circumstances.³²New York's Appellate Division, Fourth Department, citing Tarasoff, declared that the protective privilege ends where the public peril begins.³³

As courts around the nation increasingly impose liability for negligence in hiring and retaining employees who terrorize workplaces by violent acts, courts may also use the same reasoning to impose liability on employers for negligent failure to warn the targeted victim.

§ 29.2.1(c)(ii)

Respondeat Superior

The doctrine of respondeat superior may be used to impose obligations on employers under an employment or agency relationship. Under this doctrine, an employer may be held vicariously liable for violent acts committed by its employees or agents within the scope of their employment, even if the employer is not directly responsible for the conduct. As a general rule, under the doctrine of respondeat superior, an employer is liable for injuries to another proximately resulting from an employee's acts that are done within the scope of employment.

For example, in California, an employer may be found liable for an employee's torts committed within the scope of employment even if the employee's torts are willful, malicious or criminal.³⁴The employer is not liable, however, for actions that do not have a causal link to the employee's work.³⁵Employers will generally not be liable for conduct that is outside the course and scope of employment.³⁶

§ 29.2.1(c)(iii)

Intentional Infliction of Emotional Distress

Employers should be aware that they may be subject to claims for intentional infliction of emotional distress (IIED), which generally has four elements: (1) intentional or reckless conduct; (2) conduct that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; (4) severe emotional distress. In 2004, the Court of Appeals for the Fourth Circuit held that an employer could be liable for IIED where it knowingly allowed the violation of a protective order held by an employee.³⁷In Gantt v. Security USA, the plaintiff employee had informed her employer that she obtained a protective order against her former boyfriend. The employee's supervisor, who was aware of the restraining order and that the plaintiff's former boyfriend had spoken of killing her, assigned the plaintiff to an unsecured post and permitted the plaintiff's estranged boyfriend access to the her. The former boyfriend then kidnapped the plaintiff from her workplace at gunpoint, assaulted her, and raped her. The court found that while summary judgment was appropriate as to the IIED claims arising out of the plaintiff's abduction and rape, because her supervisor did not intend to impose those injuries on the plaintiff, the IIED claim arising out of her assignment to an unsecured post raised a genuine issue of material fact as to whether the supervisor intended to inflict emotional distress the plaintiff might suffer from talking to the former boyfriend.

§ 29.2.1(c)(iv)

Agency Liability

An employer must also be concerned about liability under general agency principles for a violent employee's assault or battery against persons in the workplace or persons who otherwise come in contact with the employee during the course of employment. Assault and battery are typically charged in cases where there has been some other alleged physical contact by the violent employee, including sexual harassment.³⁸

§ 29.2.1(c)(v)

Contractual Obligations

Employers may have other obligations to employees stemming from employment contracts and agreements implied in law. Except in special circumstances, it is unlikely that employers will expressly contract to provide employees with a workplace free from harm or violence by other employees or third parties. In some states, however, contractual obligations can arise even in the absence of written or express agreements. In California, for example, the Supreme Court recognizes that an implied contract may be inferred from the language in a company's policy manual or employee handbook.³⁹Employees or third parties could use company policies addressing workplace safety as the basis of a suit against the company for violation of an implied contract.

Under the implied contract theory, an employer that has a broad unlawful-harassment policy could be alleged to breach an employee's rights if the harassment engaged in by employees results in a hostile work environment. The U.S. Supreme Court has recognized such a hostile-work-environment theory in sexual harassment situations.⁴⁰By analogy, one could argue that the theory applies where an employer has a policy on unlawful harassment but fails to abate the causes leading to a hostile work environment or fails to curtail the harmful activities of employees which cause injury to others.

§ 29.2.1(c)(vi)

Public Policy

An employer may be exposed to liability for conduct that is found to violate a fundamental public policy of a particular state. An employee who complains about unsafe working conditions or refuses to work in an unsafe work environment and is terminated may be able to state a tort claim against the employer for wrongful termination in violation of public policy. In recent years, several states have allowed terminated employees to recover tort remedies, including punitive damages, from their employers, notwithstanding the at-will nature of the employment relationship or the terms of an employment agreement, where the termination violates fundamental principles of public policy.⁴¹

At least some courts recognize that there is an explicit public policy requiring employers to take reasonable steps to provide a safe and secure workplace.⁴²

§ 29.2.1(d)

Leave for Victims of Domestic Violence

In 1994, the United States Congress passed the Violence Against Women Act.⁴³The Act provided a federal civil remedy for the victims of gender-motivated violence. While not aimed specifically to combat workplace violence, some plaintiffs used this statute to sue fellow employees who committed non-consensual touching or kissing, assault, rape or other acts of violence. In 2000, the United States Supreme Court declared section 13981 of the Violence Against Women Act unconstitutional. Accordingly, employees may no longer use this Act as a basis upon which to sue their coworkers for gender-based violence.

Many state statutes provide for leaves of absence for victims of domestic violence to seek or obtain medical attention, victim services, legal assistance, or other actions to ensure their safety. See section 29.3.4 of this chapter for a discussion of some of those statutes.

In summary, employers have broad common law and statutory duties to employees and third parties. Whether such obligations are provided by special statutory provisions, contracts or other legal doctrines, it is clear that these duties are implicated whenever an employer is faced with workplace violence.

§ 29.2.2

THE RIGHTS OF THE ALLEGED PERPETRATOR

While employers must take measures to protect potential victims of workplace violence, employers must also consider the rights of alleged perpetrators and be aware of potential claims and liability that could arise when protective actions are taken. Employers could face potential liability, for example, based on an alleged perpetrator's claims of defamation, wrongful discharge, constitutional violations, discrimination, and others.

§ 29.2.2(a)

Defamation

Where an employer warns employees of an individual's violent tendencies, the employer could be found liable for defamation if the employer mistakenly believes that the perpetrator is violent. Defamation occurs when a statement that is communicated to another individual is false, unprivileged, and causes injury.⁴⁴Regardless of whether the statement is oral (slander) or written (libel), the employer might be held liable for falsely characterizing an employee as violent.

Even if an employer's statements are erroneous, however, the employer may be protected if the warning was privileged. A qualified privilege protects a statement where it was made with a good faith belief in the statement's truth, where the statement serves a legitimate business interest, and where it was published only to those individuals who needed to know of the risk.

§ 29.2.2(b)

Wrongful Discharge

An employee accused of having violent tendencies who is terminated for such violent tendencies could file a wrongful discharge suit against the employer if the employee disputes the employer's characterization.

An employer should take steps to minimize both the threat of violence and the risk of a wrongful discharge suit or grievance. For example, before a threat or actual act of violence occurs, the employer should review its employee handbook and/or personnel policies to ensure that they do not contain statements that could be interpreted as creating an implied contract that would preclude the employer from immediately terminating an employee who makes a threat or acts violently in the workplace, such as language restricting an employer's ability to suspend, transfer, demote, or take other disciplinary action against a perpetrator of workplace violence. The employer should also consider disciplinary measures, such as suspension, and should encourage resignation, where appropriate, to ease tension, reduce the risk of violence, and avoid potential wrongful discharge claims.

§ 29.2.2(c)

Constitutional Claims

Various federal and state constitutional provisions may protect alleged perpetrators. For example, the California Constitution provides all individuals with a constitutional right to privacy.⁴⁵In Georgia an employee's privacy rights are protected by the state constitution, as well as by case law recognizing the tort of invasion of privacy.⁴⁶

A government employee may argue that his speech is protected as constitutional activity. The federal Constitution and many state constitutions guarantee freedom of speech.⁴⁷Despite the broad wording of the California constitutional right of free speech, some courts have held that the free-speech right does not extend to the private sector.⁴⁸

A government employee may also try to claim that the employer's imposition of discipline violates the employee's due process rights. A violation of due process occurs when an individual is deprived of life, liberty, or property without due process. Courts have clarified that public employees' interests in their employment constitute a property right protected by the due-process clause.⁴⁹

Although an employer has an obligation under the General Duty Clause to investigate any threats of violence in the workplace in order to protect other employees and customers, the employer must ensure that it conducts its investigation legally and with the least instrusion possible. For a more extensive discussion of privacy issues, see Chapter 18 of THE NATIONAL EMPLOYER^®.

§ 29.2.2(d)

Discrimination

Alleged perpetrators of workplace violence also have made discrimination claims against employers based on the Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973. The ADA and related state statutes prohibit employers from discriminating against "qualified individuals" with physical or mental disabilities. The Rehabilitation Act protects individuals from being fired by certain employers solely because of their disabilities. However, an employer does not have to make a reasonable accommodation under the ADA or the Rehabilitation Act for a worker who commits or threatens to commit violent acts.⁵⁰

The general rule is that an employer may fire an employee in response to the employee's violent or threatening behavior, even if the behavior was precipitated by a mental illness.⁵¹An employer may also define as a qualification for any job that "an individual shall not pose a direct threat to the health or safety of [the individual himself or] other individuals in the workplace."⁵²Whether an individual poses a direct threat may be determined by several factors, including: (1) the duration of the risk posed, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.⁵³

If an employee does not pose a direct threat, however, the employer should thoroughly assess and consider all of the circumstances to determine whether the person is a "qualified individual" with a disability and whether a reasonable accommodation can or should be made in each instance. What if the alleged employee/perpetrator claims that his behavior is the result of some mental impairment or disability and requests an accommodation for that disability? Must the employer consider the request? What would be a reasonable accommodation? If possible, the employer should obtain the cooperation and participation of the disabled individual and his or her physician. Each decision needs to be made in its proper context and, if necessary, after obtaining input from legal counsel and physicians.

§ 29.2.2(e)

Tort & Civil Rights Claims

Employees accused or suspected of workplace violence also have filed various tort and civil rights claims in response to employers' preventative actions. In addition to the constitutional privacy claims discussed above, an employee could, for example, also file a tort claim for invasion of privacy. Tort privacy claims include intrusion into private affairs, public disclosure of private facts, placing the employee in a false light, and others.⁵⁴The degree to which courts recognize such torts varies by state.

The employer often has a qualified privilege to investigate and address issues that are of legitimate concern to the employer, including the safety of workers and customers.⁵⁵As long as the employer's investigation is justified by a legitimate concern and is undertaken in good faith, a court is apt to conclude that the employer's investigation of the alleged perpetrator does not result in liability for invasion of privacy.

Where a third party, such as a customer or client, interferes with the employment relationship between an employer and employee, the employee may be able to state a tort claim against the third party for intentional or negligent interference with contractual relations or prospective economic advantage. For example, where a third party insists that an employee who is believed to have violent propensities be terminated, the employee may be able to establish a claim against that third party for interference with contract. A defendant may succeed in defending against such a claim by establishing that the interference was justified to protect an interest more important than the employee's interest in the contract. A defendant who induces a breach of contract by lawful means is justified, and therefore privileged, if the objectives advanced by the interference are more important than the interest interfered with. Where the third party is interfering with the employee's employment in order to protect the safety of an individual and the third party is not acting with an improper intent, a court will likely conclude that the interference was justified.

Finally, it is possible that an employee terminated for making violent threats may assert a civil rights claim under 42 U.S.C. section 1983 against a private employer for that employer's involvement in the criminal prosecution of the employee. Section 1983 is aimed at state action and state actors. As a consequence, it generally provides no remedy for individuals victimized by private party conduct. However, private actors may align themselves so closely with either state action or state actors that their conduct may be held to violate section 1983. Thus, private sector employers should take note that excessive intervention or attempts to control criminal prosecutions of employees may result in a court finding that the employer is sufficiently aligned with the state so as to be held liable for a civil rights violation. Private employers should cooperate to the fullest extent with the police and district attorney's office but should not try to control the public proceedings.

§ 29.2.3

C. THE SPECIAL ROLE OF THE CRIMINAL JUSTICE SYSTEM

Depending on the state and locality, an employer may be able to encourage local law enforcement officials to pursue criminal law sanctions against an individual who engages in workplace violence. Although local law enforcement will be familiar with the possible criminal laws on which to rely, employers may want to be aware of the basic categories of criminal laws that may be applied to a perpetrator of workplace violence.

§ 29.2.3(a)

Anti-Stalking Laws

According to a 1998 National Institute of Justice study, more than 1.4 million Americans (approximately 1 million women and 400,000 men) are stalked each year. Stalking can be considered a category of workplace harassment and violence. Stalking presents itself in the workplace through the behavior of: (1) one employee against another employee, (2) a nonemployee (current or former romantic partner) against an employee, or (3) a nonemployee (little or no prior contact) against an employee. Such stalking behavior is not characteristically confined to the workplace but will involve acts outside the workplace against the employee as well.

Stalking has generally been defined by both psychologists and some legislatures as having three components:

• a course of conduct in which there is a repeated pattern of following or harassing another person;
• making a threat to harm or acting in a threatening manner; and
• intent to cause harm or distress.⁵⁶

As a result of numerous incidents in which individuals obsessively followed, harassed and, in some instances, killed others, every state has enacted laws prohibiting stalking or harassment. Most states classify first time stalking offenses as misdemeanors with penalties ranging from one year in prison and/or up to a $1,000 fine, with much stiffer penalties for second time or repeat offenders.

The point in time at which a stalking act becomes a criminal violation may vary. For example, in North Carolina, before the stalking law can be invoked, the victim or a third party designated by the victim must inform the perpetrator to stop stalking the victim.⁵⁷

§ 29.2.3(b)

Cyberstalking

In August 1999, in response to a request from former Vice President Gore, the United States Attorney General issued a report, Cyberstalking: A New Challenge for Law Enforcement and Industry,⁵⁸exploring the nature of cyberstalking, analyzing the adequacy of current federal and state laws, and recommending ways to improve efforts against cyberstalking. According to this study, one out of 12 women and one out of every 45 men have been stalked at some time in their lives.

Cyberstalking generally refers to the use of the Internet, e-mail, or other electronic communications devices to "stalk" another person — whereas traditional "stalking" refers to engaging in repeated harassing or threatening behavior (such as following a person, appearing at a person's home or workplace, making harassing telephone calls, or leaving written messages or objects) that places the victim in reasonable fear of death or bodily injury. Roughly one-fifth of states have enacted statutes to specifically address cyberstalking. The remaining states have expanded their stalking and harassment statutes to cover cyberstalking.⁵⁹

Two federal statutes, the Federal Domestic Violence and Stalking Act⁶⁰(prohibiting interstate stalking), and the Federal Obscene or Harassing Telephone Calls Statute⁶¹(prohibiting use of the phone or other telecommunications device to stalk or harass), serve to further protect people from cyberstalking.

Employers should treat an employee's complaints of cyberstalking just as seriously as a complaint of traditional stalking. In addition, an effective electronic communications policy will help minimize an employee's use of work computers to stalk fellow employees or members of the public.

§ 29.2.4

D. SPECIAL ROLE OF THE CIVIL COURT SYSTEM: RESTRAINING ORDERS

§ 29.2.4(a)

Purposes of Restraining Orders

Restraining orders serve two major purposes — to prohibit specific conduct by the perpetrator and to order the perpetrator to stay away from the victim. The first purpose of prohibiting specified conduct typically includes prohibiting the perpetrator from making physical contact with the victim, conducting surveillance of the victim, following the victim, telephoning the victim, and blocking the victim's movement. The second purpose of ordering the perpetrator to stay away from the victim usually includes a requirement that the perpetrator stay a specified distance from the victim, the victim's residence, the victim's work, and the victim's children's schools or places of child care.

§ 29.2.4(b)

Types of Restraining Orders

Victims of workplace-related harassment or threats of violence now have two different types of restraining orders that they can pursue in many states. An individual employee may obtain a civil-harassment restraining order that prohibits specified conduct by the perpetrator and orders the perpetrator to stay a certain distance away from the victim. For example, to persuade a court to grant a civil harassment temporary restraining order under California law, the victim must show specific facts, including: (1) a knowing and willful course of conduct, (2) which requires more than one act directed at a specific person, (3) which seriously alarms, annoys, or harasses the person, (4) which serves no legitimate purpose, (5) which would cause a reasonable person to suffer substantial emotional distress, and (6) which actually causes emotional distress to the victim.⁶²

In some, but not all states, another option is for the employer to seek a temporary restraining order or injunction to protect itself or employees experiencing threat or harassment at work.⁶³In Arizona, an employer may obtain an injunction to protect itself or any employee or other person on the employer's property. In granting the injunction, the court may prohibit the defendant from going near the employer's property or contacting the employer or individual employees while they are at work.

In California, the employer must show that the threat or conduct places a reasonable person "in fear for his or her safety, or the safety of his or her immediate family," which serves no legitimate purpose.

Indiana law allows an employer to obtain an injunction against a person on behalf of an employee to prohibit further violence or threats of violence only if the employee has already suffered violence or threats of violence by the person at work. The Indiana law specifically states that it does not expand, diminish, alter, or modify the duty of an employer to provide a safe workplace.

§ 29.2.4(c)

Steps for Obtaining a Temporary Restraining Order & Injunction

Once the individual victim or the employer has decided to pursue a restraining order, several steps must be completed before the petition seeking the restraining order and other legal papers are filed with the court. While the particulars for this process vary by state, to illustrate, an employer in California would follow the process below.

The employer's first step is to interview the victim and determine the facts surrounding the violent or harassing incident. The interviewer should be either a manager experienced in investigating such incidents or legal counsel for the employer. The interviewer should obtain all the facts necessary to support the elements that must be proven to obtain the desired type of restraining order. When interviewing the victim, information on the perpetrator should also be gathered, including the perpetrator's home address and phone number, work address and phone number, typical work hours, physical description, and vehicle description.

The second step is to interview any corroborating witnesses. It is often helpful in convincing the court to issue the temporary restraining order to have other individuals confirm that the incident in fact was as egregious and terrifying as the victim believes it to be. Alternatively, interviewing other witnesses may uncover important facts that negate the need to seek a temporary restraining order.

The third step is to draft the papers that will be filed with the court and which will persuade the court to issue a temporary restraining order. Due to the emotional nature of the incident underlying the need to obtain the temporary restraining order, and the need to obtain the temporary restraining order quickly, we recommend that legal counsel familiar with this process and with the unique rules of each jurisdiction be used, to minimize the confusion otherwise inherent in this process. The Judicial Council of California has approved forms to be used when obtaining injunctions prohibiting harassment. Using the proper forms helps avoid delays in filing the papers with the court clerk.

After the papers are drafted, the fourth step is to meet with the victim and other witnesses to review and sign the papers. Because the affidavits or declarations are signed under penalty of perjury, factual accuracy is critical. After obtaining signatures, the documents are taken to the appropriate court to obtain the judge's signature.

After the papers are delivered to the victim and to the appropriate police departments, the perpetrator must be served with the legal papers, the signed court order, and other documents as specified by law. Because the protection should be as complete as possible before the perpetrator is notified that the victim has initiated legal proceedings, the perpetrator should not be served with the documents until after the victim and police have received copies.

Finally, a process server or a sheriff should be hired to serve the perpetrator. A party to the action (the individual or employer seeking the temporary restraining order) cannot serve the perpetrator. Because many perpetrators try to avoid having papers served on them, we recommend serving the perpetrator as soon as the victim and the police departments have received their copies of the papers.

To obtain a long-term injunction (generally three years in California), the victim or other witnesses must testify in court as to the elements summarized above that must be proven to obtain a temporary restraining order. Once the judge grants and signs the three-year restraining order,⁶⁴the restraining order must be delivered to the victim and to the appropriate police departments. Some counties have developed abbreviated procedures for notifying the Sheriff's and police departments.

§ 29.2.5

E. SPECIAL LIABILITY CLAIMS INVOLVING THIRD PARTIES

§ 29.2.5(a)

Liability to Nonemployees for Conduct of Workers & Third Parties

In some states, such as California, an employer may be shielded from most employee claims resulting from injury or death on the job, because workers' compensation provides the exclusive remedy for occupational injuries. However, employers may incur substantial liability to the survivors of employees, or even to nonemployees, for actions of perpetrators whose violent conduct could have been prevented.

Liability in these circumstances is premised on negligence or on the breach of contractual or implied duties that inure to the benefit of victims or, by extension, to their families. Parent and subsidiary corporations may also be held liable for negligence.⁶⁵The following cases illustrate these points and demonstrate the seriousness of the problem caused by violence in the workplace, even where a company is not the victim's or the perpetrator's employer.

In May 1999, a jury awarded nearly $8 million to families of two workers killed at an Asheville plant where a fired employee shot three former coworkers and left another wounded. That morning, the fired employee purchased an M-1 carbine at a local pawn shop and drove to the plant carrying it and a semi-automatic pistol he had purchased and registered with the police department five weeks earlier. The gunman had been fired two days prior to the killings, after having been suspended for fighting with coworkers. An EAP psychologist, who performed a threat assessment, concluded that the employee would accept termination without becoming hostile. This assessment proved wrong and the fired employee now stands convicted of three counts of first-degree murder and has been sentenced to death.

In January 1994, the owner of a frozen-yogurt shop and the owner of a shopping mall in Austin, Texas, where the shop was located, agreed to pay $12 million to the parents of four young girls. Two of the four victims worked in the store where they were murdered during a 1991 robbery. The civil suit, which alleged inadequate security by the defendants, was settled.

In 1993, a Texas court of appeal held that a Houston fast-food restaurant could be liable for the death of Lorrie Midkiff, a customer who was shot and killed while waiting in the drive-through line of the restaurant. Midkiff was attacked by three men attempting to steal her car.

The remedies available to plaintiffs under situations similar to the above examples, in which millions of dollars were awarded, include damages for emotional distress occasioned by negligently caused injuries to the victims.

§ 29.2.5(b)

Other Potential Sources of Third-Party Liability

In suits by visitors against employees working on the premises, courts from coast to coast wrestle with holding the owner of workplace premises liable for negligence, based on criminal activity. Generally, to establish negligence the plaintiff must show that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injury suffered by the plaintiff. Courts have long recognized a landlord's duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of precautionary measures. Increasingly, injured persons are alleging that this duty requires landowners to provide a workplace free from violence.

Numerous federal and state courts have attempted to define the scope of the property owner's duty to protect individuals who work on the premises. These courts have emphasized that the foreseeability of the criminal activity is a key factor in determining the property owner's duty to safeguard the employees of companies located on the premises.⁶⁶

Certain industries or organizations may be susceptible to third-party claims based on their special relationships with the public. Public transit authorities in California, for example, are required to use the "utmost care and diligence" and must protect passengers when they know, or should know, that an assault is about to occur.⁶⁷Security companies may also be found liable for negligence when it is reasonably foreseeable that an employee could cause harm to another person. Finally, unions represent yet another party from whom a victim or family may seek recovery.⁶⁸

Liability may also arise in certain jurisdictions under the voluntary assumption theory when employers voluntarily or contractually assume a duty to protect employees from the harmful acts of third parties. An employer may assume a duty, for example, when it contracts to provide security, or actually implements security measures, but nonetheless fails to protect its employees.⁶⁹Employers who elect to implement security measures at their facilities must also ensure that these measures are adequate to protect their employees.⁷⁰

§ 29.3

III. STATE SURVEY OF WORKPLACE VIOLENCE SAFETY STANDARDS

§ 29.3.1

A. STATE-OSHA REQUIREMENTS & GUIDELINES

About half of states and two territories have taken the initiative to develop their own OSHA guidelines, programs and training materials. Five illustrative state guidelines are discussed below, and web site addresses to all of the state and territorial agencies are provided at the end of this section.

§ 29.3.1(a)

California-OSHA (Cal-OSHA)

California requires every employer to establish an Injury and Illness Prevention (IIP) Program, designed to ensure the safety and security of employees.⁷¹The IIP Program must be effective and in writing. On March 30, 1995, the California Department of Industrial Relations, Division of Occupational Safety and Health (DOSH) adopted revised guidelines for workplace security (guidelines).⁷²

To provide guidance to employers, DOSH's guidelines divide workplace violence into three categories:

Type I: The perpetrator has no legitimate business relationship with the workplace and enters the workplace in order to commit a robbery or other criminal act.

Type II: The perpetrator is either the recipient or object of a service provided by the affected workplace or the victim (e.g. a current or former client).

Type III: The perpetrator has employment-related involvement with the workplace.

The DOSH guidelines suggest that every employer perform an initial assessment to identify workplace security factors that may contribute to the risk of violence in the workplace. The guidelines stress that employers must consider each type of workplace violence and adapt the IIP Program to address their vulnerability to the particular risks associated with their workplace. DOSH provides several guidelines and/or requirements for each type of violence it has identified. For example, according to DOSH, employers who are at a high risk of Type I violence must provide training in crime awareness, assault and rape prevention, defusing hostile situations, and knowing what steps to take during an emergency. DOSH's position is that controlling workplace access and facilitating communication are important considerations for employers at a high risk of Type II violence. With respect to Type III violence, where the perpetrator ordinarily has some relationship to the workplace, DOSH suggests that employers establish a clear antiviolence policy, apply the policy consistently and fairly, and provide appropriate supervisor and employee training in workplace violence prevention.

DOSH issued a revised final edition of its Model IIP Program for Workplace Security on March 15, 1995. The Model Program notes that no California employer is required to use it. However, DOSH's model program provides a simple format to help California employers respond to the complex problem of workplace violence. The model is not designed to be utilized "as is" but should be tailored to each particular workplace depending on the security hazards the employer faces. For this reason, employers should analyze the potential risk of violence on their premises and determine the program that will be most appropriate.

"Guidelines" and "Models" appear to be suggestions rather than legal requirements. The DOSH guidelines and model program are indeed intended to provide assistance to employers and give companies a sense of what DOSH will look for in reviewing a company's security plan. However, a guideline or model can become a de facto regulation, and deviation therefrom may expose an employer to liability. In 2002, DOSH issued a Guide to Developing Your Workplace Injury and Illness Prevention Program, designed to help employers improve workplace protection for their employees. The Guide is intended to provide guidance for employers, not to proscribe requirements.⁷³

On May 1, 1996, DOSH implemented a policy and procedure (P&P) on dual-employer liability.⁷⁴Although the P&P is not binding on the Cal-OSH Appeals Board (the agency that serves as the judicial arm of Cal-OSHA and hears employer appeals), the P&P is likely to be followed by DOSH. Prudent employers should be aware of and should follow the guidelines.

The most common dual-employer situation is one involving a temporary help agency or an employee leasing company that provides an employee to work under the supervision and control of another company. In such circumstances, the company supplying the employee is the primary employer and the company supervising the employee at the work site is the secondary employer. Under the P & P, a secondary employer is liable for any safety and health hazard when: (1) a contingent employee is exposed to a Cal-OSHA violation, and (2) the secondary employer exercised supervision and control over the employee. The circumstances in which a primary employer will be cited for safety and health violations are far broader and more complex. Generally, a primary employer may be cited when there is employee exposure to a violation, even if the primary employer has no significant involvement with the work site.

Although the P&P does not address workplace violence specifically, the rules may be extended to apply to violence. Temporary agencies and employers who use temporary employees should review these policies both for safety violations and for workplace violence issues.

On January 1, 2000, DOSH's standards on the enforcement of employer safety responsibilities on multiemployer work sites became effective. California Labor Code section 6400(b) provides that at multiemployer worksites, citations may be issued to any of the following: the employer whose employees were exposed to the hazard, the employer who actually created the hazard, the employer who was responsible for safety and health conditions at the worksite, or the employer who was responsible for correcting the hazard. The most common multiemployer work site is a construction site, where owners, general contractors and subcontractors may share obligations. In the construction context, property owners may be held responsible for workplace hazards even if they did not create them and even if their employees were not exposed to the hazards. Although multiemployer work sites are most common in the construction context, the regulations also apply to nonconstruction work sites.

The multi-employer regulations are designed to fill a gap between the DOSH standards and the Fed-OSHA standards, which previously addressed multiemployer situations. However, it is unclear at this time whether the "hazard" referred to in the statute will include incidents of workplace violence.

DOSH has also issued guidelines for health care and community service workers.⁷⁵In addition to environmental factors identified by OSHA, DOSH's Guidelines point to work practices such as decreased staffing at meal times and visiting hours. The Guidelines fall into two broad categories: (1) general provisions and program development; and (2) specific work setting requirements, which include engineering controls, work practices, personal protective measures, and individualized training (based on the type of work site). Program elements include a worksite analysis and hazard prevention and control. The Guidelines further provide that engineering and administrative controls will depend in large part on the type of facility. For example, "panic buttons" are recommended in psychiatric hospitals, whereas personal hand-held alarms may be more appropriate for home and field community service workers to use. More specific details for various health care and social service settings are laid out in the Guidelines. Finally, the DOSH Guideline highlights that training and evaluation are critical parts of reducing violence in health care settings.

§ 29.3.1(b)

Georgia

Although Georgia does not have a state equivalent to OSHA, the Georgia code places a duty on employers to provide a safe place to work. Therefore, an employer could be exposed to liability for failure to eliminate violence from the workplace.⁷⁶This statutory duty does not make the employer an absolute guarantor of its employees' safety; rather, the employer is under a duty to exercise ordinary care in making an effort to provide a reasonably safe place to work.⁷⁷

§ 29.3.1(c)

Hawaii-OSH

In October 2001, the Hawaii Department of the Attorney General promulgated a workplace violence manual that provides guidance to employers on preventing violence in work environments.⁷⁸The manual cites Hawaii's General Duty Clause as requiring employers to provide employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm."⁷⁹The manual states that this duty includes "inspecting the workplace to discover and correct a dangerous condition or hazard in the workplace and to give adequate warning of its existence."⁸⁰

The handbook discusses practical steps to deal effectively with workplace violence. First, employers should consider developing a program and a written policy statement, as well as training on how to recognize and prevent violence. In the event of actual violence, the employer should thoroughly investigate the facts and assess the threat. It should consider the impact on employees when deciding the appropriate treatment for offending employee. The manual also attaches practical checklists, worksheets, and recommended response procedures.

§ 29.3.1(d)

Minnesota State-OSH

Like some other states, Minnesota has a state Occupational Safety and Health program administered by the Minnesota Department of Labor and Industry, which division is responsible for compliance program administration, conducting enforcement inspections, adopting standards, and operating other related OSHA activities. The program also provides employers, upon request, with consultation services to prevent workplace accidents and diseases by identifying safety and health hazards.

The mission of the Minnesota plan is to ensure that every worker in the State of Minnesota has a safe and healthful workplace. This involves applying a set of tools provided by Minnesota OSHA, including standards, development, enforcement, compliance assistance, training, and education to assist employers in complying with this mission. Minnesota OSHA operates a loggers' safety education program, a workplace violence prevention program, and a safety grants program.⁸¹

A study by MNOSHA, Workplace Violence: Are You At Risk, identifies several sources of internal violence, including understaffing, heavy workload, excessive overtime, intimidation, and rigid management styles. Recommended strategies for dealing with these stressors include providing training, establishing zero-tolerance policies, improving communication between workers and management, and establishing an Employee Assistance Program to assist workers. The same study identified a number of ways to minimize the risk of violence initiated by strangers: keep windows cleared, improve lighting, keep minimal cash on site, use security guards, alarm systems, metal detectors and security cameras, and have safe rooms for employees to use in an emergency.

§ 29.3.1(e)

Oregon-OSHA

Under its general duty clause, Oregon law, like federal law, requires employers to maintain a safe workplace.⁸²

The Oregon Occupational Safety & Health Division (OR-OSHA) developed Guidelines that provide recommended steps on reducing the hazards of workplace violence. The Guidelines briefly discuss pertinent legal issues and employers' legal obligations in Oregon and set forth a Six-Step Workplace Violence Prevention Program. Although employers should customize the program to suit their particular workplace, the suggestions contained in the guidelines are sufficiently general to be adopted and tailored for various employment situations.

Step One of the Program involves forming a committee that will develop the program.

Step Two is to conduct a risk assessment and review security. This entails examining past incidents of reported violence, reviewing OSHA logs, and surveying all workers to determine the extent of unreported violence. Reviewing security involves assessing existing policies and determining the need to modify existing security measures, such as better lighting, security cameras, or door locks.

The Third Step in the program is to develop a written policy, which should include preemployment screening, termination and layoff procedures, and ground rules for acceptable behavior.

In Step Four, the employer is encouraged to adopt a training program for employees of all levels. The training program should be designed to provide workers and managers with knowledge of applicable policies and procedures.

Step Five suggests creating a crisis-response plan, which includes an internal plan for communicating emergencies, incident report procedures, incident response procedures, and follow-up procedures to inform employees about what has happened and how it is being handled. These follow-up procedures are crucial for alleviating anxiety among workers and reducing misinformation. Employers should also consider, as part of Step Five, establishing a threat-management team. This team is often composed of representatives from the company's security department, Human Resources, legal or medical service providers, external psychologists, or threat-assessment experts. The team's duties may include managing the violence prevention program, as well as providing guidance concerning liaisons with outside assistance, planning for media relations, or otherwise managing operations after the crisis.

The Final Step in the Program is for the employer to test and improve its violence prevention plan. The plan should be reassessed every year, and should include, for example, analyzing trends and surveying employees.

The OR-OSHA Guidelines also provide a helpful list of consultative, enforcement, training, and technical resources that are available to employers, as well as some important do's and don'ts for dealing with potentially violent individuals.⁸³

§ 29.3.1(f)

State of Washington-WISHA

The State of Washington Industrial Safety and Health Administration (WISHA) has developed a guidebook, WORKPLACE VIOLENCE: AWARENESS AND PREVENTION FOR EMPLOYERS AND EMPLOYEES ("the Guidebook"), to help employers and employees recognize acts of workplace violence, take steps to minimize and prevent them, and respond appropriately if they occur. The Guidebook specifically states that the recommendations are voluntary and do not impose mandatory obligations on employers. Employers are encouraged to incorporate the information provided into an accident prevention program, a separate workplace violence prevention program, or an employee handbook.

The WISHA Guidebook discusses four types of workplace violence, including violence by strangers, violence by customers or clients, violence by coworkers, and violence by personal relations. It sets forth potential prevention measures for each category.

With respect to violence by strangers, the Guidebook focuses on the retail store industry and sets forth numerous risk factors and potential preventative measures. High-risk factors include working with money, working in isolation, operating at night, and providing poor visibility into the work site and poor lighting outside. The Guidebook suggests preventative measures such as training, posting signs stating that cash registers contain minimal cash, leaving a clear, unobstructed view of cash registers from the street, and maintaining adequate outside lighting, among others.

The second type of workplace violence, violence by customers or clients, often arises in the social work or healthcare context. The Guidebook discusses potential risks, including working in isolation, working after hours, and dealing with violent customers. The Guidebook recommends that employers conduct a hazard assessment and take preventative measures, including controlling access to the work site, providing a communication system to alert security, eliminating easy access to potential weapons, and providing good client referral and assistance programs.

The third category involves violence by coworkers. The Guidebook focuses on the potential of retaliation by an employee recently disciplined for poor performance. In this case, risk factors include high stress in the workplace, lack of appropriate management protocols for disciplinary actions, lack of appropriate supervisory training, and individuals with propensities toward violence. To avoid such a scenario, the Guidebook recommends adopting and enforcing a policy of no tolerance for workplace violence, adopting management policies for layoffs and disciplinary actions, providing access to employee assistance and counseling services, and providing adequate security personnel on site.

The fourth category is violence by personal relations. The Guidebook gives the example of the attack on an employee by her distraught ex-husband. In this scenario, risk factors include an individual with a history of violent or threatening behavior, the lack of controlled access to the work site, and the lack of a communication policy regarding restraining orders. The Guidebook sets forth numerous potential preventative measures, including training to respond to domestic violence, policies on handling and preventing violent situations, restraining orders, controlled access to the work site, and effective reporting and notification procedures.

In addition to these recommendations regarding the prevention of specific instances of violence, the Guidebook also sets forth the suggested elements of a workplace violence prevention program. The Guidebook suggests a seven-step program consisting of: (1) management commitment and employee involvement, (2) hazard assessment, (3) hazard prevention and control, (4) training and instruction, (5) reporting procedures, (6) recordkeeping, and (7) evaluation. Attached as an exhibit to the WISHA Guidebook is a "Sample Workplace Violence and Prevention Program" that includes numerous sample forms and program checklists. Littler Mendelson also produces a handbook on employer safety, workplace violence, and domestic violence in the workplace, which is used at seminars for State of Washington employers. The course and the corresponding materials provide an overview of WISHA, the responsibilities of employers, managers, and supervisors under WISHA, a discussion of workplace violence recognition and prevention, and a review of the issue of domestic violence in the workplace. Seminar participants discuss real-life safety and health issues, including issues involving violence in the workplace, and learn about their obligations under the law.

The State of Washington has also passed a workplace violence law to address hazards to healthcare workers.⁸⁴The law approaches addressing the problem with three prongs: (1) a workplace violence protection plan; (2) violence protection training; and (3) recordkeeping requirements. The plan, which healthcare employers were required to implement by July 1, 2000, is required to address security considerations such as the physical attributes of a healthcare setting, staffing (including security staffing), personnel policies, first aid and emergency procedures, reporting violent acts, and employee education and training. Implementing the plan requires a violence assessment risk based on five years of the employer's own historical data. The annual violence protection training must address general safety procedures, including personal safety procedures, the violence escalation cycle, violence-predicting factors, obtaining patient history from a patient with violent behavior, verbal and physical techniques to deescalate and minimize violent behavior, strategies to avoid physical harm, restraining techniques, and the appropriate use of medications as chemical restraints. The training must be provided to all employees within 90 days of hire. Finally, the law requires that each healthcare setting keep a record of any violent act against an employee, patient, or visitor occurring in the healthcare employment setting.

In 2001, WISHA promulgated a related Regional Directive entitled Workplace Violence Prevention in Health Care.⁸⁵The directive applies to all WISHA enforcement and consultation activities involving workplace violence in health care settings. The directive provides an interpretive guidance, and discusses special enforcement and consultation protocols. The directive explains that although the law may not cover nursing homes and other health care employers, general WISHA requirements apply to those entities. The directive also details how employers will be cited for various violations of the law.

§ 29.3.1(g)

Contact Information for State Occupational Safety Offices⁸⁶

State	Agency	Web site
Alaska	Dep't of Labor & Workforce Development, Labor Standards & Safety Division	http://www.labor.state.ak.us
Arizona	Industrial Commission of Arizona, Division of Occupational Safety & Health	http://www.ica.state.az.us/ADOSH/oshatop.htm
California	Dep't of Industrial Relations, Division of Safety & Health	http://www.dir.ca.gov/ occupational_safety.html
Connecticut*	Dep't of Labor, Division of Occupational Safety & Health	http://www.ctdol.state.ct.us
Hawaii	Dep't of Labor & Industrial Relations, Division of Occupational Health & Safety	http://hiosh.hawaii.gov/
Indiana	Dep't of Labor, Occupational Safety and Health Division	http://www.in.gov/labor/iosha
Iowa	Iowa Division of Labor Services	http://www.iowaworkforce.org/labor/index.html
Kentucky	Dep't of Labor, Occupational Safety & Health Program	http://www.labor.ky.gov/osh/index.htm
Maryland	Division of Labor & Industry, Occupational Safety & Health	http://www.dllr.state.md.us/ labor/mosh.html
Michigan	Division of Labor & Economic Growth, Occupational Safety & Health	http://www.michigan.gov/cis
Minnesota	Dep't of Labor & Industry	http://www.doli.state.mn.us/ mnosha.html
Nevada	Division of Industrial Relations, Occupational Safety & Health Administration	http://www.dirweb.state.nv.us
New Jersey*	Dep't of Labor and Workforce Development, Labor Standards and Safety Enforcement	http://www.nj.gov/labor/lsse/lsshinfo.html
New Mexico	Environment Dep't, Occupational Safety & Health Bureau	http://www.nmenv.state.nm.us/
New York*	Dep't of Labor, Division of Safety & Health	http://www.labor.state.ny.us
North Carolina	Dep't of Labor, Occupational Health & Safety Division	http://www.dol.state.nc.us/osha/ osh.htm
Oregon	Occupational Safety & Health Division, Dep't of Consumer & Business Services	http://www.orosha.org
Puerto Rico	Puerto Rico Dep't of Labor and Human Services	http://www.osha.gov/fso/osp/PRStandards.html
South Carolina	Dep't of Labor, Licensing and Regulation, Office of OSHA Compliance	http://www.llr.state.sc.us/osha/index.asp
Tennessee	Dep't of Labor & Workforce Development	http://www.state.tn.us/labor-wfd/tosha.html
Utah	Labor Commission, Division of Occupational Safety & Health	http://www.uosh.utah.gov
Vermont	Dep't of Labor & Industry, Occupational Safety & Health Administration	http://www.state.vt.us/labind/ vosha.htm
Virgin Islands*	Virgin Islands Dep't of Labor, Division of Occupational Safety & Health	http://www.osha.gov/oshdir/stateprogs/VirginIslands.html
Virginia	Dep't of Labor & Industry, Division of Occupational Safety & Health	http://www.doli.state.va.us
Washington	Dep't of Labor & Industries, WISHA Services Division	http://www.LNI.wa.gov/wisha
Wyoming	Dep't of Employment, Occupational Health and Safety	http://wydoe.state.wy.us/

§ 29.3.2

B. SPECIAL INDUSTRY-SPECIFIC WORKPLACE VIOLENCE STATUTORY PROTECTIONS

§ 29.3.2(a)

The Florida Convenience Business Security Act

The State of Florida enacted the Florida Convenience Business Security Act ("the Act") to combat violence directed at late-night convenience stores.⁸⁷The Act requires that convenience businesses that primarily sell gasoline, groceries, or both and that are open between 11:00 p.m. and 5:00 a.m. be equipped with certain security measures, including security cameras, a drop-safe or other device to restrict access to cash receipts, lighted parking, a notice stating the cash register contains $50 or less, and window signs that allow a clear and unobstructed view from outside the building. The Act also requires that every convenience store maintain a silent alarm to law enforcement or private security agencies, unless an application for an exemption is made to and granted by the attorney general.

The Act also provides that if a murder, robbery, sexual battery, aggravated assault, aggravated battery or kidnapping occurred since July 1, 1989, and the crime arose out of the operation of the store, the business must implement additional security measures specified in the statute. The business owner may file for an exemption from the security measures if, after implementing and maintaining them, none of the criminal acts specified in the statute occurred during a period of at least two years.

§ 29.3.2(b)

The Washington State Late-Night Retail Worker Crime Protection Standards

The Washington Administrative Code includes Late-Night Retail Worker Crime Protection standards, which require late-night retail establishments to implement detailed employee training programs and specified engineering design features.⁸⁸Employers are required, for example, to provide crime prevention training as part of an accident prevention program, and training on security policies and procedures. The standards also obligate employers to configure window and door displays to provide clear views from the inside, to provide adequate outside lighting, and to install drop-safes or comparable devices on the premises.

§ 29.3.2(c)

The New Mexico Convenience Store Standards

Effective June 1, 2004, the New Mexico Administrative Code requires convenience stores (defined as stores selling convenience goods with or without gasoline) to be equipped with exterior lighting, a VHS or digital security system, a security alarm for the store, panic alarms for each employee that notify the police or a private security company when activated, and a depository or other safe.⁸⁹On a monthly basis, the security system of the stores must be inspected, and all inspection reports and documentation of repairs must be maintained for at least two years.

The Code also requires crime prevention and safety training for employees upon hire, to be reviewed at least every three months. The training must cover: (1) an overview of the potential risk of assault; (2) operational procedures, such as cash handling rules, designed to reduce risk; (3) proper use of security measures and engineering controls the employer has adopted; (4) behavioral strategies to defuse tense situations and reduce the likelihood of violence; (5) specific instructions on how to respond to a robbery and how to respond to attempted shoplifting; and (6) emergency action procedures to be followed in the event of a robbery or violent incident. Employees must sign an acknowledgment form indicating when they received the training, which the employer is required to maintain. Current employees must be trained within 90 days of the effective date of the regulation.

New Mexico's new code provisions require convenience stores to post signs indicating that there is a safe in the store to which employees do not have access, that there are active security alarm and surveillance systems, and that there is a limited amount of cash in the register. The store may not have more than $50 in the cash register at any time.

Convenience stores open between the hours of 5:00 p.m. and 5:00 a.m in New Mexico must take at least one of the following additional security measures: (1) have at least two employees at the store, or one employee and on-site security personnel; (2) provide controlled access area enclosed by transpired bullet proof materials; (3) provide a bullet-proof pass through window restricting the service counter area. Alternatively, the employer may choose to close the store and prohibit all sales transactions, although it may allow employees to perform duties such as store stocking, maintenance, and cleaning. If the employer chooses this option, it must post conspicuous signs on all entrances stating that the store is closed.

§ 29.3.3

C. WORKPLACE VIOLENCE POLICIES ADOPTED BY CITIES

Increasingly, cities and towns of various sizes have taken affirmative measures to address workplace violence in an effort to safeguard city workers. These measures are sometimes used and articulated as a challenge to private employers doing business in those cities.

Pursuant to the Seattle Municipal code, the city of Seattle prohibits violence against Seattle's employees, customers, clients, and visitors to its workplaces. The city's personnel director is required to implement a Workplace Violence Prevention Program, to designate a coordinator of the program, and to compile information to evaluate the program,

In its workplaces, St. Paul, Minnesota prohibits violent behavior, defined as the use of physical force, harassment or intimidation, or abuse of power or authority where the impact is to control by causing pain, fear, or hurt. Other cities that have adopted policies toward violence include Boston, Massachusetts, Hartford, Connecticut, Colorado Springs, Colorado, Riverside, California, Camden, New Jersey, and Milwaukee, Wisconsin.

§ 29.3.4

D. PROTECTION FOR VICTIMS OF DOMESTIC VIOLENCE

In recent years, several states have passed, or attempted to pass, legislation allowing employees to take leaves of absence on account of domestic violence. Illinois' Victims' Economic Security and Safety Act (VESSA)⁹⁰requires employers of 50 or more employees to allow employees to take up to 12 weeks of unpaid leave per year for legal action, medical attention, counseling, victims' services, or relocation.

Colorado requires employers of 50 or more to allow an employee to take up to three days of unpaid leave to protect himself or herself from domestic abuse, stalking, sexual assault, or any other crime whose underlying factual basis includes domestic violence.⁹¹An employee is deemed to be protecting himself or herself under the act by seeking a civil protection order, obtaining medical care, seeking legal assistance or securing his or her home. To take advantage of this leave provision, employees must first exhaust other available leave and must have worked for the employer for at least one year.

As compared to the Illinois and Colorado statutes, Maine's provisions for employment leave for victims of violence are broader in some ways and narrower in others.⁹²They provide that an employer must grant "reasonable and necessary leave from work," with or without pay, for court proceedings, medical services, or other services to remedy a crisis caused by domestic violence, sexual assault or stalking. The leave must be needed because the employee or his or her child, parent, or spouse is a victim of violence, assault, sexual assault, stalking, or other offense that would support an order for protection under Maine law.

In California, employers with 25 or more employees must allow an employee who is a victim of domestic violence to take time off from work.⁹³California's Victims of Domestic Violence Employment Leave Act states that an employee may take unpaid time off from work (or use available vacation or personal time) to:

• seek medical attention for injuries caused by domestic violence;
• obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence;
• obtain psychological counseling related to an experience of domestic violence; and
• participate in safety planning and take other actions to increase safety from future domestic violence, including temporary or permanent relocation.⁹⁴

An employer who discharges, retaliates or discriminates against an employee taking time off pursuant to this provision may have to reinstate that employee and is liable for all lost wages and work benefits. Moreover, an employer who willfully refuses to rehire or restore an employee who has utilized such leave may be guilty of a misdemeanor.⁹⁵

In 2003, California amended its Penal Code to provide greater protection for victims of domestic violence. It provides that before a detained person, who has gone to the workplace of a party subject to a domestic violence protection order, may be released on his or her own recognizance or on bail for an amount other than the amount contained on the bail schedule, he or she must have a court hearing.⁹⁶

In 2004, Rhode Island enacted the Victim's Economic Security and Safety Act, which applies to employers with 50 or more employees.⁹⁷The Act provides employment protection for victims of crimes to be absent from work to attend court proceedings related to the crime. Leave may be unpaid, or the employee may choose to use or an employer may require the employee to use accrued paid vacation, personal leave or sick leave. An employer may limit the leave if it creates an "undue hardship" to the employer's business. Rhode Island also prohibits discrimination against an employee or applicant based on seeking or obtaining a protective order, or refusing to seek or obtain a protective order.⁹⁸

Effective December 1, 2004, North Carolina law prohibits an employer from discharging, demoting, disciplining, or denying a promotion to an employee who takes "reasonable time off" from work to obtain or attempt to obtain a protective order or other relief under the state's domestic violence law.⁹⁹An employee who is absent to such seek relief must follow the employer's usual time off policy or practices. If the employer generally requires advance notice of absences, the employee must provide advance notice unless there is an emergency. Employers may require the employee to provide documentation showing the reason for the absence.

Many other states have statutes that provide that employers may not fire or retaliate against employees who take time off from work to participate in judicial proceedings, including those addressing violence.¹⁰⁰In total, about one third of states have enacted legislation providing various levels of protection for victims of domestic violence or their families from being negatively impacted at work.¹⁰¹.

In 2001, an amendment to the New York City Human Rights law made it unlawful for an employer in New York City to refuse to hire, penalize, discharge, or otherwise discriminate against an individual because of the actual or perceived status of the individual as a domestic violence victim.¹⁰²The Code defines "domestic violence victim" broadly, as a person who has been subjected to "acts or threats of violence," committed by:

• a current or former spouse;
• a person with whom the victim shares a child in common;
• a person who is cohabiting with or has cohabitated with the victim;
• a person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim; or
• a person who is, continually has, or at regular intervals lived in the same household as the victim.¹⁰³

In addition, domestic violence victims receiving medical treatment or therapy for physical or psychological effects may be covered under the Administrative Code's provisions regarding disability.¹⁰⁴

The National Center for State Courts has published a Resource Guide for Workplace Domestic Violence, which outlines laws and legislation, provides guides and forms, and suggests initiatives and prevention programs.¹⁰⁵It also provides general information for employers about the relationship between domestic violence and the workplace.

§ 29.3.5

E. THE SPECIAL ROLE OF WORKERS' COMPENSATION CLAIMS IN WORKPLACE VIOLENCE

§ 29.3.5(a)

Employer's Liabilities Under Workers' Compensation— Models from Selected States

The role of the workers' compensation system is significant in workplace violence. In general, an employee who is injured by violence in the workplace cannot recover damages against the employer, and such employee's recovery is limited to workers' compensation benefits. However, the rules vary from state to state. In California, for example, in order for an employee's injury to be compensable under the workers' compensation statutes, the injury must not only be sustained in the course of employment (during the performance of service) but also must arise out of the employment.¹⁰⁶If these requirements are met, the workers' compensation system generally provides the exclusive remedy for injuries sustained by an employee during the employment relationship, and the worker will be precluded from seeking other civil claims against the employer.¹⁰⁷This section provides a brief review of different types of events and injuries that may be compensable under the workers' compensation statutes, including assaults, psychiatric injuries, emotional distress, and an employer's willful misconduct.

An assault in the workplace is compensable under California's workers' compensation laws where the subject matter of the dispute leading to the assault involves the work itself, or the work brought the injured employee and the perpetrator together and created the conditions and relations that resulted in the altercation.¹⁰⁸However, an assault at work that is purely personal and unrelated to the employment is not compensable under the workers' compensation scheme.¹⁰⁹The workers' compensation laws do not prevent an employee from stating a cause of action against an employer for the intentional acts of a coworker if the employer knew of the behavior and failed to take corrective action.¹¹⁰

Georgia courts interpret "in the course of" and "arising out of" employment broadly enough that workers' compensation is often the exclusive remedy available to a victim of workplace violence. In Maxwell v. Hospital Authority, the Georgia Court of Appeals found that an employee was injured within the "scope of her employment" when she was raped, beat and robbed in an employee parking lot after her shift ended.¹¹¹The injuries were deemed to have occurred "in the scope of her employment" because the victim was required to walk to her car unescorted in the early morning hours several times a week. Therefore, her recovery was limited to recover workers' compensation benefits and she could not maintain a negligence cause of action against the hospital. In another gruesome case out of Georgia, a pizza delivery driver pulled over in response to a vehicle with a flashing blue light. The driver of the other car doused him in gasoline and set him on fire, causing second and third degree burns over his body. The Georgia Court of Appeals, following Maxwell, held that workers' compensation was the plaintiff's only recourse as he was acting "in the course of" his employment when he pulled over to offer the other driver assistance.¹¹²

Colorado law provides immunity from civil liability to the employer and employee when the tortfeasor and victim are both acting in the course of their employment. The rule of immunity operates even if the tort is intentional, such as an assault.¹¹³However, not all intentional torts committed by employees against coworkers fall within the workers' compensation bar.¹¹⁴

Some states continue to attempt to restrict an employee's ability to receive workers' compensation benefits for psychiatric injuries unless the employment relationship was a substantial factor in the causation. For example, California law requires an employee to demonstrate by a preponderance of the evidence that the actual events of employment were "predominant" as to all of the combined causes of the psychiatric injury. However, an employee whose psychiatric injury resulted from "being a victim of a violent act or from direct exposure to a significant violent act" need only establish by a preponderance of the evidence that actual events of employment were a "substantial cause" of the injury, which means at least 35-40% of the causation was due to the actual events of employment.¹¹⁵

In order to be compensable in Texas, the psychiatric injury in question must be the result of a qualified accidental injury, traceable to a specific time, place and cause, which is incurred during activities furthering the employer's business. Generally, anxiety over reprimands, transfers, promotion decisions, and other general anxiety related to a job are not considered accidental injuries incurred in furthering the employer's business and are not considered compensable mental trauma claims under the Workers' Compensation Act.¹¹⁶

In Popovich v. Irlando, the Supreme Court of Colorado held that a plaintiff's claims against her coworkers for intentional infliction of emotional distress were not barred by coworker immunity.¹¹⁷The court stated that to the extent plaintiff recovered workers' compensation benefits from the employer, the recovery should not be duplicated. In Kirk v. Smith, the federal court in Colorado held that a tort claim for assault and outrageous conduct against a supervisor resulting primarily in mental and emotional distress, as distinguished from the physical incapacity to perform job duties, was not barred by the Workers' Compensation Act.¹¹⁸

An employer's willful attack on an employee is not a risk or a condition of employment, so an employer's intentional assault on an employee is compensable under California's workers' compensation law and may also be redressed in a civil action for damages.¹¹⁹Furthermore, where an employee acts as the employer's agent in harming another employee, the employer can be liable for damages in a civil action.

The Illinois Supreme Court has held that the Workers' Compensation Act bars certain state tort claims against employers.¹²⁰The Illinois Workers' Compensation Act contains an exclusivity provision dictating that an employee has no "common law or statutory right to recover damages from the employer . . . or its agents or employees" for accidental injuries incurred in the course of employment.¹²¹Illinois courts recognize exceptions to workers' compensation exclusivity when the employee proves that the injury was not accidental, did not arise from his employment, was not suffered in the course of his employment, or is not compensable under the Workers' Compensation Act.¹²²Employees must show a specific intent to injure on the behalf of the employer in order to avoid workers' compensation exclusivity.

Illinois courts have held that claims for negligent infliction of emotional distress may be preempted by the Workers' Compensation Act. For instance, the plaintiff in Small v. Chicago Health Clubs, Inc. alleged, among other things, that the employer "created a hostile environment where gender-based discrimination was permitted and encouraged."¹²³The plaintiff alleged negligent infliction of emotional distress because the employer failed to take appropriate steps to prevent the continued harassment. The court found that her negligent infliction claim was preempted by the Workers' Compensation Act because the Act contains an exclusivity provision which bars an employee from bringing a common law suit for an accidental injury arising out of and in the course of employment which is compensable under the Act.

In Texas a workplace injury, including an assault, will be compensable under the workers' compensation scheme unless: (1) "the injury arose out of an act of a third person intended to injure the employee because of personal reasons and not directed at the employee as an employee or because of the employment," or (2) the injury was a result of "the employee's willful attempt to injure himself or to unlawfully injure another person."¹²⁴

There is an exception in Texas in wrongful death cases that allows recovery for exemplary damages where an employee's death was caused by an employer's gross negligence or intentional act.¹²⁵Gross negligence is defined as more than momentary thoughtlessness, inadvertence, or error of judgment. "It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected."¹²⁶Where this exception was relied upon in the context of workplace violence, wrongful death lawsuits involving very large damage claims have been reported.

In the context of workers' compensation claims, the Texas Supreme Court has defined an intentional act as one where the actor (the employer's agent) actively desires to cause the consequences of his act or believes that the consequences are substantially certain to result from it.¹²⁷Thus, an employer's liability for intentional conduct should be rare in the context of workplace violence when an employee or third party causes the violence. For example, in one workplace violence case, the court determined that, in order for the employer to be held liable for a gross negligence or intentional tort claim, it would have to be assumed that the employer hired the aggressor with the desire or substantially certain belief that the aggressor would attack and injure the victim.¹²⁸However, an employer does risk tort liability where the employer is aware of a danger to an employee and fails to act to prevent it. Thus, if an employer has knowledge that an employee is the victim of domestic violence and that the employee is being threatened at work, the employer may be liable for failing to protect the employee from harm while at work.¹²⁹

§ 29.3.5(b)

Workers' Compensation & the Perpetrator

An employee who commits a violent act in the workplace, and who sustains injury during the course of a violent act, may or may not be entitled to workers' compensation benefits. For example, California workers' compensation law bars recovery of benefits in the following circumstances: (1) where the injury is intentionally self-inflicted, (2) where the employee willfully and deliberately causes his or her own death; (3) where the injury arises out of an altercation in which the employee is the initial physical aggressor; or (4) where the injury is caused by the commission of a felonious act by the injured employee or of a crime which is punishable as specified in California Penal Code section 17(b) (which addresses offenses which can be misdemeanors or felonies) for which the employee has been convicted. The above-stated exceptions to recovery are likely to prevent the perpetrator of a violent act in the workplace from recovering workers' compensation benefits for injuries sustained to himself or herself during the course of the violent act.

§ 29.4

IV. PRACTICAL RECOMMENDATIONS FOR PREVENTING WORKPLACE VIOLENCE

§ 29.4.1

A. SUMMARY OF LITTLER'S SEVEN–STEP PRACTICAL PLAN ON WORKPLACE VIOLENCE

In response to the phenomenon of workplace violence in the past decade and in recognition of growing legal obligations on employers to control violence, Littler Mendelson has developed a seven-step practical approach (Seven-Step Plan) for preventing and addressing workplace violence. These recommendations are weighted in favor of policy and legal responses. However, we include recommendations from trauma experts and security consultants.¹³⁰We also incorporate some of the guidelines for employers published and compiled in conjunction with the International Association of Chiefs of Police.¹³¹

A summary of Littler's plan is provided below. The plan is set forth in full in Littler's handbook, TERROR AND VIOLENCE IN THE WORKPLACE, Third Edition.

Step One: Develop a Management Team

The first step in Littler's Seven-Step Plan is to make preventing and controlling workplace violence a priority and to form a management team to develop, review, and implement policies dealing with violence in the workplace. The top levels of management must be aware that the problem of workplace violence is growing and having devastating effects on employees and on employers' operations. Management must recognize the problem and make a priority of solving it or at least controlling it. One of the most tangible methods of establishing this