In August of 1986, a part-time letter carrier walked into an Oklahoma post office and killed 14 of his co-workers before turning the gun on himself. The Oklahoma postal¹ tragedy brought national attention to the unfortunate, but growing, phenomenon of workplace violence.² Stories of workplace mass murders by unstable employees became commonplace for the local and national news media and the headlines were sensational: “Plant Worker Kills Six at Lockheed Martin Plant in Meridian, Mississippi” (The Meridian Star, July 2003); “Insurance Executive Kills Three at New York City Offices of Blue Cross/Blue Shield” (NY1 News, September 2002); “Xerox Technician Kills Seven Co-Workers in Honolulu” (Honolulu Star-Bulletin, November 1999); “Day-Trader Kills Nine, Then Self in Atlanta’s Buckhead Community” (The Atlanta Journal-Constitution, July 1999);”Four Connecticut State Lottery Workers Killed by Accountant” (The Washington Post, March 1998).

Statistics from a study by the National Institute for Occupational Safety and Health (NIOSH), one of the most comprehensive studies of violence in the workplace, are staggering:

• Homicide was the second leading cause of death from an injury in the workplace, accounting for approximately 7,600 deaths from 1992 to 1997;
• Forty-one percent (41%) of all deaths from occupational injuries involving women were the result of homicides;
• Seventy-five percent (75%) of all occupational homicides were the result of gun use; fourteen percent (14%) could be attributed to knives or other piercing tools;
• Non-fatal workplace assaults resulted in nearly 900,000 lost workdays and an annual $16 million in lost wages; and
• In 1997 alone, employers were hit with over $4.2 billion dollars in lost productivity and legal fees due to workplace violence.

We look at these statistics and horrific incidents of workplace violence and ask, “What pushes these people over the edge?” “Could this happen in my workplace?” and “Didn’t anybody see this coming?” The fact is that the warning signs of unstable persons are there. The signs, however, are often misread or ignored, or we attempt to justify telltale actions as “personality quirks.” And the warning signs of overly stressed work environments are also there; we account for those who perpetuate such environments by describing them as “efficient” or “highly productive.”

We would all agree that an unstable employee, coupled with an overly stressed work environment, creates a bad combination. Indeed, we see the effects of this dangerous combination in our workplaces on a regular basis. Statistically speaking, workplace homicides represent only a small portion of violent incidents in the workplace–approximately one percent.³ In contrast, approximately one million workers a year–nearly 18,000 a week–are assaulted at work.⁴ Workers are faced with threats, harassment, bullying, verbal and physical intimidation, stalking and other forms of unacceptable behavior that, when left unchecked, have the potential to lead to significantly more violent behavior. What, then, are employers supposed to do?

What is Workplace Violence?

Where does a personality quirk end and a potential risk begin? To answer that question, we first need to look at how we define the problem of workplace violence. Generally, people think of workplace violence solely in the context of physical assaults or homicides. Many mental health professionals consider such a definition too narrow, and instead define workplace violence more broadly, such as “any verbal or physical assault or any violence that occurs in the workplace even if its source is not related to the work environment”⁵ or “any abusive, threatening, intimidating, or assaulting conduct against a co-worker whether physical or verbal. Such conduct can be seen in the form of shaking fists, throwing objects, destroying company property, written or verbal threats, swearing, insults, condescending language, hitting, shoving, pushing, kicking and the like.”⁶ When the definition of workplace violence is viewed in a more expansive context, the risk factors become clearer and, importantly, easier to manage. We examine those risks and strategies below.

What Should You Look For in Your Workplace?

A few years ago, in an effort to curb the increasing incidence of violence in its workplace, the United States Postal Service engaged the services of several mental health professionals to study its environment and its employees. The professionals determined two factors contributed to risky, dangerous workplaces; they characterized those factors as “violence-prone individuals” and “incident-prone environments.” Studies by a host of other researchers similarly have identified both worker and environmental factors as contributors to workplaces that are at risk for violence. Below is a compilation of some of the most common factors.

Violence-Prone Individuals. Most of us have heard the term “Type A personality.” Typically, it is used to describe someone who is extremely driven, meticulous, detail oriented, and narrowly focused on achieving certain goals, no matter what. But “Type A” is merely the tip of the iceberg for the violence-prone individual. For example, employees at a computer software company in a Detroit suburb reported a co-worker who claimed to have gotten a military style haircut “for when I go psycho.” The employee also threatened to kill one of his managers. Needless to say, the company quickly terminated this employee and took several precautions to prevent a violent situation at or after his termination meeting (many of those precautions are discussed later in this article). Clearly, this employee had problems that needed to be addressed immediately.

In other cases, are the signs as clear? They can be. Generally speaking, a violence-prone or destructive individual will display some or all of the characteristics listed below:

• Highly impatient; hypersensitive and hyper-reactive to even the smallest issues
• Unreasonably judgmental; has rigid and righteous standards by which everyone else will fall short
• Highly suspicious (bordering on paranoid); often has an “it’s me against the big, bad world” attitude
• Preoccupied by a need to control everything around himself or herself
• Creates unrealistic goals and timeframes
• Believes he or she is entitled to break the rules and, therefore, should be immune from consequences
• Engages in intimidation of others through extremely
  aggressive behavior or by constantly ridiculing or demeaning others
• Has sharp and dramatic mood swings
• Constantly allows himself or herself to be bullied and picked on by others
• Has history of violence, substance abuse or problems dealing with authority
• Is preoccupied with or owns a large number of weapons
• May have been subject to a recent traumatic event, such as an adverse employment action or domestic violence, or to recent or frequent disputes with supervisor or co-workers

Incident-Prone Work Environments. Unstable individuals are not the only factors that must be addressed when dealing with issues of workplace violence. As you read the following factors that typify an incident-prone environment, ask yourself, “Is my company a ‘poster child’ for a work environment that … “:

• Is driven by “time, numbers and crises,” resulting in customers being treated like royalty while employees are treated like peasants, or that expects greater productivity in less time by fewer people?
• Is subject to rapid and unpredictable change in the form of increased downsizing or rapid expansions in relatively short periods of time?
• Allows supervisors and managers to communicate frequently in excessively aggressive, condescending, explosive or passive/aggressive tones?
• Looks the other way when supervisors and managers allow subordinates to communicate with co-employees in similarly aggressive, condescending, explosive tones or allows co-employees to “scapegoat” others (such as allowing bullying or harassment of co-workers perceived to be “slackers”)?
• Fosters company executives, managers and supervisors who are dismissive of employee feedback and ideas or whose leadership styles could be described as autocratic. In other words, do my executives, managers or supervisors conduct themselves in a manner that screams, “The workforce is not paid to think”?
• Demonstrates a double standard in the application of policies and procedures between certain groups of employees, e.g., management vs. general workforce, or between the races or sexes?
• Has failed to implement effective mechanisms for addressing grievances or concerns?
• Has failed to train supervisors or managers to recognize truly troubled employees and provides no assistance to those who are in need of help?
• Lacks opportunities for job rotation or advancement?
• Permits external disruptions to prevail in the work environment, e.g., temperature too hot or too cold; poor air quality; overcrowded workspace with little privacy; excessive overtime; personnel shortages; high noise levels?
• Fails to perform background checks on new hires, resulting in persons with violent pasts working in the facility?
• Continues to promote, rotate or ignore problematic, less competent or emotionally charged individuals who should not be in management level positions?
• Allows employees’ personal lives to be brought into the workplace?
• Fails to perform regular safety and security reviews of the premises and has no policy against workplace violence?

As you can imagine, any of these factors alone could present problems in your workplace. The unfortunate reality is that many companies have several of these factors working at any particular time, thus dramatically increasing the risk of an incident-prone environment.

Why Should Your Company be Concerned?

Overview Of Theories Of Liability. Employer liability for failing to take appropriate action in preventing workplace violence can be substantial. Potential liability exists under a number of legal theories.

In short, employers have a legal duty to provide reasonable protection to their employees and members of the general public from violence in their workplace. Under Section 5(a)(1), often referred to as the “General Duty Clause,” of the federal Occupational Safety and Health Act, an employer is required to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Twenty-six states, including Georgia, have adopted State Plans, approved by the Occupational Safety and Health Administration, which incorporate similar “general duty” language.

“Type A” is merely the tip of the iceberg for the violence-prone individual.

Most states, including Georgia, also impose employer liability for workplace violence pursuant to state common-law theories of negligent hiring or retention, respondeat superior, failure to warn (with regard to prospective employer recommendations), and premises liability. For purposes of this article, we focus on those theories–negligent hiring, retention or supervision, respondeat superior, and failure to warn–that concern the employer-employee relationship.

Negligent Hiring And Retention. Liability under the theory of negligent hiring and retention is premised on the notion that an employer knew, or in the exercise of reasonable diligence, should have known, of an applicant’s or employee’s propensity to engage in violent behavior, but hired or continued to employ the person nonetheless.

In negligent hiring cases, the significant factual issues concern the adequacy of the employer’s pre-employment screening–what information was learned, or should have been learned, as a result of an effective screening prior to the applicant coming to work for the company. An employer may successfully defend against negligent hiring claims if it can prove the company took adequate steps to conduct criminal background checks, and dutifully checked employment references, and no information from its screening processes reasonably placed the employer on notice of the applicant’s violent tendencies.

Similarly, the key issues in negligent retention claims concern whether, during the course of the employment relationship, the employer knew or should have known of an employee’s propensity to engage in violent, dangerous or harassing behavior, but nonetheless failed to take reasonable steps to correct or remedy the situation. In other words, the focus in negligent retention cases is whether notice was provided to the employer of an employee’s alleged misconduct and what, if anything, the employer did to eliminate the problem. Direct observations by managers and supervisors of an employee’s unusual behavior are not the only way a company may be considered “on notice” for purposes of a negligent retention claim. Notice also can be imputed to the employer via customer or co-worker complaints. For purposes of establishing liability, the question is whether, when faced with evidence of violent or harassing tendencies, the employer took effective, meaningful disciplinary action to combat the conduct.

As the following case illustrates, an employer may be held liable for the subsequent death or injury of a co-worker or other person if an employee with known violent or dangerous propensities is hired or retained. The City of East Point, Georgia found out the hard way that failing to take appropriate action after being placed on notice of an employee’s dangerous propensities can lead to substantial liability. In the matter of Harper v. City of East Point, 237 Ga. App. 375, 515 S.E.2d 629 (1999), a female plaintiff brought a claim against the City of East Point as a result of a police officer’s assault of the claimant in the back seat of his patrol car. The Georgia Court of Appeals found there was sufficient evidence to present to the jury that the City knew or should have known of the officer’s propensity to engage in sexual misconduct. In particular, the evidence showed that, prior to having hired the officer, the City was aware that the officer had pled guilty to making harassing phone calls and had lied about the incident on his employment application. In addition, it was shown that during the officer’s employment with the City, the City also became aware of three other sexually inappropriate incidents, which, the court reasoned, should have put the City on notice of the officer’s propensity to engage in sexual assault.

Respondeat Superior. Employer liability under the theory of respondeat superior is premised on the notion that the employer is vicariously liable for the wrongful acts of its employee if such acts were committed within the scope of the employee’s employment and in furtherance of the employer’s business.>>>>

The Georgia Code codifies the scope of an employer’s liability in Section 51-2-2 as follows:

Every person shall be liable for torts committed by … his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.

In other words, a court looks at whether the employee’s misconduct occurred while accomplishing the ends of his or her employer’s duties. Unlike the negligent hiring and retention cases, claims brought under the theory of respondeat superior need not show that the employer had notice of the employee’s propensity to engage in violent or inappropriate behavior. The primary requirement in these cases is that the employee’s actions were related to his or her employment and were not personal in nature.

The classic example of claims brought under a respondeat superior theory concerns persons who perform security for their employers–e.g., bouncers at a nightclub or after-hours security guards. Bouncers, for instance, are hired to protect the premises and keep out undesired or unruly patrons. In some cases, however, the overzealous actions of employees providing a security function have resulted in liability for their employers. For example, in the case of Odom v. Hubeny, Inc., 179 Ga. App. 250, 345 S.E.2d 886 (1986), the Georgia Court of Appeals found a restaurant vicariously liable for the actions of its waitress. The waitress had punched and poured hot coffee on an unruly customer while attempting to remove the customer from the premises. According to the court,
asking unruly customers to leave the premises was within the scope of the waitress’s employment and in furtherance of the employer’s business; thus, her actions could be imputed to the restaurant.

Duty To Warn; Letters Of Recommendation. A third area of potential liability for employers concerns the information provided to prospective employers about former employees. Typically, we recommend that references remain neutral, so as to guard against potential claims for defamation and invasion of privacy, and that the information provided to a prospective employer be limited to the employment law equivalent of “name, rank and serial number”: dates of the candidate’s employment, position(s) held, salary history, and, if asked, whether the employee is “eligible” for rehire (i.e., providing a one-word response to the question, “Would you rehire this person?”).

In order to encourage a limited flow of information concerning employees who may be dangerous or who have engaged in unlawful conduct related to their employment, a number of states, including Georgia, provide a qualified immunity from liability for defamation and other potential claims for employers who provide statements to prospective employers regarding a candidate’s job performance. The Georgia Code, however, requires that, in order for the immunity to apply, such comments must be provided in good faith and limited to the following subject areas:
– job performance
– any (substantiated) act committed by the employee
that would constitute a violation of the laws of the
State of Georgia
– ability or lack of ability of the employee to carry out the duties of his or her current or previous position

Further, the statements must be made to the prospective employer only upon request of the prospective employer or the person seeking employment.

An employer will not be protected under Georgia law if it is shown that the information was provided in bad faith (i.e., lack of confirmed information); the information was disclosed in breach of a non-disclosure agreement entered into between the former employer and employee; or the information would be considered confidential under applicable federal, state or local law (e.g., statements based on medical information). In addition, employers should keep in mind that while Georgia law provides immunity from liability for statements made at the request of a prospective employer, it does not protect information voluntarily provided by a former employer without such a request.

Employers must implement, monitor and model “zero-tolerance” policies for violence and weapons.

Potential liability associated with providing a poor reference notwithstanding, employers also should be aware that at least two states, Florida and California, have allowed claims to proceed where the employer provided favorable references for employees previously terminated for violent and/or sexual misconduct.

In an unpublished Florida state court decision, Jerner v. Allstate Insurance Co., No. 93-09472 (Fla. Cir. Ct. Aug. 10, 1995), families of five office workers shot by a co-employee were allowed to proceed to trial against the defendant insurance company, the killer’s former employer. After being hired, then fired, by his subsequent employer, the individual shot the five workers, killing three, before turning the gun on himself. The victims’ families argued that the insurance company should be held liable for monetary damages because it had written a letter of recommendation for the killer to his subsequent employer–even though the killer had been fired from the insurance company for carrying a gun in his briefcase.

In a 1997 California decision, Randi W. v. Livingston Union School District, 929 P.2d 582 (Cal. 1997), a female student brought claims against a school system arising from sexual molestation by her school principal. In addition, the student was allowed to proceed with claims against the principal’s former employers on grounds that each had provided favorable job references but failed to disclose the principal’s history of sexual misconduct charges.

As these cases demonstrate, an employer may be deemed to have a duty to warn prospective employers of a former employee’s violent, dangerous or harassing propensities. But because liability may attach if disclosures of information are subsequently deemed improper, we highly recommend that you consult with counsel before disclosing any such information.

What Prevention Strategies Should You Implement?

Given the potential liability caused by dangerous employees and work environments, what can an employer do to reduce the risk of workplace violence? Listed below are a number of practical tips to help minimize the potential for violence in your work environment:

• Implement a “zero-tolerance” policy as to violence that is communicated from, and modeled by, every level of management. Include a statement in that policy that weapons are banned from the premises.
• Train supervisors and managers to recognize and report troubling conduct.
• Require employees to report any threats and abusive behavior. Educate employees that their reports need not be limited to death threats. If possible, set up an anonymous system of reporting. Be sure to investigate all threats of violence.
• Have an action plan in place for responding to an incident of workplace violence.
  Take proactive steps during the hiring process:
  • Conduct thorough background checks.
  • Make sure applicants identify all prior employers and their reasons for leaving each former place of employment. Ask applicants to explain periods of unemployment.
  • Check references.
  • Make job offers conditional upon satisfactory results from reference and background checks.
• Make sure reasons for termination are not a surprise. Provide employees with regular oral and written evaluations of their performance, including specific goals, areas of improvement and an express statement of what will happen if no improvement is shown.
• Think ahead and take appropriate precautions when terminating employees:
  • Some suggest terminating on Mondays, rather than Fridays. The idea here is that the employee will have an opportunity to begin the job search immediately instead of having a weekend to stew about the termination.
  • Select an appropriate location for the termination meeting. If possible, hold the termination meeting in an office near an exit. This strategy minimizes the potential of exposing many others to a potentially violent situation, and allows the terminated employee to leave or be escorted from the premises discreetly.
  • Choose a time for the termination when the potential for onlookers is small. If a low-traffic time is not available, make arrangements to send for the employee’s personal belongings, and do so immediately. Have another manager or supervisor retrieve coats, keys and other immediately needed personal effects and bring them to the termination meeting room (without comment to onlookers). Explain to the terminated employee that any other items will be mailed to him or her within the next few days.
• Consider offering post-termination assistance such as severance pay, career counseling or your company’s employee assistance program.
• Assess your security measures regularly. Easily fixed, but often missed, areas of potential risk include broken or ineffective locks and poor lighting, especially in parking areas.

A particular note should be made here about domestic violence. Domestic-related incidents continue to be a source of violence in the workplace. Domestic issues that start in the home often follow an employee to the workplace because the perpetrator knows this is the one place the victim can be found. If your company becomes aware of domestic violence issues involving one of its employees and has legitimate concerns that the threat may follow him or her into your workplace, you have some options. First, you can offer the employee time off until the situation is resolved. If possible, offer at least a portion of the time off with pay. This strategy removes a possible target from your workplace and allows the employee to focus on reaching some sort of resolution without worrying about the financial repercussions of missing work.

In addition, a 2000 amendment to Georgia’s Labor and Industrial Relations Code permits employers to seek and obtain temporary restraining orders where an “employee has suffered unlawful violence or a credible threat of violence from any individual, which can reasonably be construed to have been carried out at the employee’s workplace.” … “Unlawful violence” is defined as assault, battery or stalking; a “credible threat of violence” is defined as “a knowing and willful statement or course of conduct which would cause a reasonable person to believe that he or she is under threat of death or serious bodily injury, and which is intended to, and which actually causes, a person to believe that he or she is under threat of death or serious bodily injury, and which serves no legitimate purpose.”

Conclusion

Increases in depictions and acts of violence have touched all aspects of our society–from television and movies, to schools and the workplace. With disturbing frequency, we see and hear news accounts of yet another disgruntled employee “going postal.” There are, however, warning signs and proactive steps that employers can–and must–take to minimize their liability for claims arising from workplace violence. Employers must implement, monitor and model “zero-tolerance” policies for violence and weapons; assess and, if necessary, update security measures; implement comprehensive training and educational programs for supervisors and employees; investigate and take prompt, appropriate action for all claims of threatened violence; recognize and address factors that contribute to violence-prone individuals and incident-prone environments; conduct comprehensive employment and criminal background checks prior to hiring applicants; and consider the implications of what you say–or don’t say–to warn prospective employers of the violent or dangerous tendencies of a former employee.

Endnotes