I am passionate about preventing the tragic scenario wherein Human Resources (HR) personnel and law enforcement find out too late that workplace violence could have been averted. Over and over I encounter incidents in which misinterpretations of legal issues prevented stakeholders from sharing critical information that could have potentially saved lives.
Understanding operationally relevant laws and workplace violence prevention can be difficult, but by working with a team that includes legal counsel, HR and a security consultant, you and your company can develop a plan that is easy to understand and implement.
That’s why every time I train security and HR staff members regarding workplace violence, I warn them: “Don’t let misinterpretations of privacy laws hinder your ability to prevent workplace violence.” Ignoring the information sharing efforts means it’s critical that you have an in-depth conversation with your company’s legal counsel and HR director about public safety exceptions to specific privacy laws.
Getting advice from the experts
I am humbled to have been invited to co-author a chapter, “Legal Considerations in The Management of Threats,” published in a recent book discussing thought leadership on workplace violence, Workplace Violence: Issues on Threat Management. It was co-authored and compiled by several key players in this practice, including:
- Christina Holbrook – Co-lead of the Boeing Company’s Enterprise Threat Management program. She has been an active member of the Association of Threat Assessment Professionals (ATSP) since 1997.
- David E. Bixler – Co-lead of the Boeing Company’s Enterprise Threat Management program. He has been involved with Boeing as the site Threat Management Team (TMT). For the past 25 years, he has been a reserve officer with the Newport Beach Police Department and is a member of its Special Weapons and Tactics (SWAT) team.
- Eugene Rugala – Behavioral consultant and research specialist and formerly of the Federal Bureau of Investigation’s (FBI) Critical Incident Response Group (CIRG) and former Chief of the FBI Behavioral Analysis Unit 1 – Threat Assessment and Counter Terrorism.
- Carrie Casteel – Associate Professor of Occupational and Environmental Health at the University of Iowa (UI) and current associate director for the UI Injury Prevention Research Center and the director for the Occupational Injury Prevention Program of the Heartland Center for Occupational Health and Safety.
The book defines workplace violence, delves into the myths and realities surrounding the topic and provides readers with the latest statistics, thinking and strategies in the prevention of workplace violence. All of the authors, including myself, have implemented successful workplace violence protection programs and guided novice and experienced practitioners alike in the development of their own programs.
What your legal counsel brings to the table
The book discusses the role of the multi-disciplinary TMT in managing the risks, challenges and issues inherent in threats and threatening behavior. This team is tasked with the assessment of threats and threatening behavior and developing management strategies, particularly when there is a high level of risk. Legal counsel plays a pivotal role in this process, which I describe in my chapter. We divided the chapter into three components so that an employer can develop a plan that is a legal response to workplace violence:
- Pre-Incident – Constitutionally protected freedoms, state law, common law and tort claims.
- During the Incident – An employee’s right to privacy, the American Disabilities Act (ADA), wrongful termination and due process, rights under a collective bargaining agreement, discrimination, hostile work environment.
- Post-Incident – The Exclusivity Rule and recovery, common law liability, negligent hiring, negligent supervision and retention, problems with avoiding liability, Occupational Health and Safety Administration (OSHA), and temporary restraining orders (TRO).
These steps and considerations can never be addressed without giving legal counsel representation on the TMT. A best practice in the formation of TMTs recognizes that different disciplines should be represented because a group that draws its members from many segments of the community is enriched by diverse perspectives and has access to more sources of information, including those of an organization’s legal counsel. We summarize the importance of this initiative at the conclusion of our chapter:
“Judgements are minimized when legal counsel, as part of the multi-disciplinary threat management team, weighs the various legal considerations mentioned, balancing that with specific knowledge of the law and a program for violence prevention.”
Ultimately, I hope my chapter assists those in the legal profession who are participating in the identification, assessment and management of persons who may pose a danger to their organizations. My friend Andre Simons, FBI Supervisory Special Agent and Certified Threat Manager, in fact dedicated this work to those we will potentially save by further augmenting workplace violence prevention policies. He writes, “Through this book, they have provided a great service by reminding us that targeted violence can be prevented and new headlines can be written… ‘Today a plot to attack a local business was discovered and the shooting was thwarted before it occurred. No injuries were reported.’”