An employer’s worst nightmare is when violence occurs in the work environment: particularly when an employee commits an act of violence against a co-worker. In 2014 according to the Bureau of Labor Statistics, 15,980 individuals experienced trauma from nonfatal workplace violence and 409 were victims of workplace homicide. The effects of a violence incident extend beyond the actual act of physical aggression, especially for the employer.

Liability for Workplace Violence-Related Incidents

Employers face liability in workplace violence cases under three legal theories: negligent hiring, negligent retention, and negligent supervision. While courts have ruled both ways, employers may face liability for acting intentionally or deliberately to injure an employee, which includes failure to take steps necessary to prevent harm when a known or suspected danger exists.

3 Theories of Liability

These are summarized as follows:

1.      Common Law Liability

Under common law an employer is liable to employees under agency law. This means that if an individual is employed in the service of another person or entity that person or entity can be liable for the wrongful acts of the employee while in the ordinary course of business. Courts generally interpret the phrase “ordinary course of business” broadly, which increases the potential liability for the employer. To recover under this liability theory, an individual must show all elements of common law negligence: meaning, there is duty, breach, cause, and harm.[1] This theory expands duty to encompass a duty of care owed to employees – meaning employers have a duty to prevent foreseeable harms.

2.      Negligent Hiring

Under the negligent hiring theory, an employer hires can be found liable for negligent hiring if ordinary care is not exercised during the hiring process, including the hiring practices.[2] Generally most claims of negligent hiring turn on the issue of foreseeability —whether or not it was foreseeable at the time of hiring that the individual could pose a threat to the workplace.

3.      Negligent Supervision and Retention

Under this theory, negligent supervision liability arises out of the employee/employer relationship, including where the employer was not aware of any potential risks until after the employee was hired. To be found liable for negligent supervision, it must be determined that the employer failed to train or supervise the employee properly. For example, employers have been found liable for negligent supervision where wrongs committed by supervisors or employees were possible as a result of their position and not corrected by the employer. Negligent retention essentially means that, after receiving complaints about an individual, the employer did not take any action to correct the behavior or prevent it from occurring again in the future. If an employer is on notice, meaning that the employer is aware of improper behavior, liability for negligent retention may attach.

 

3 Tips on How Employers Can Protect Themselves from Liability

The ultimate goal for any employer is to protect persons and assets from harm, including protecting itself from liability in a lawsuit arising from an act of workplace violence. Aside from the physical harm, lawsuits are costly, and engaging in a lengthy one can greatly injure a business financially and publicly.  For these reasons, many employers choose to settle cases relating to workplace violence. However settlements are also costly for the employer and business. Therefore, it is essential that a business creates a preventative approach to limiting its liability and outcomes from workplace violence. What can an employer do to protect itself and its assets, both personal and business, from a lawsuit?

  1. Conduct a comprehensive background check on prospective employees to ensure there is not a potential red flag before hiring an individual. A lot of information is available in public records, media accounts and through other social media sites. While privacy laws can make it difficult to get all the necessary information, they do not make it impossible for an employer to identify potential concerns. Private sector employees, in particular, have no concrete privacy protections under federal law, though courts will often apply common law and use a similar reasonable expectation of privacy test with respect to these employees.[3] For example, if an individual has been discharged for previously making threats at the workplace, they have no reasonable expectation of privacy regarding that information. The employer’s due diligence in conducting a background investigation for prospective employees is a critical first step in securing the work place.
  2. Develop and operationalize a workplace violence prevention policy through training and active supervision that is fairly and uniformly applied to all employees. A policy that is not ‘live,’ meaning that it is not trained and enforced in a consistent manner can create short- and long-term issues. For instance, if an employee has a history of violating the policy and has not been subject to intrusive supervision and progressive discipline, it may open the employer to claims of negligent supervision. Indiscriminate supervision, with different standards applied to employees, also has potential negative results in the workplace. Such actions also contribute to employer liability.   Developing a comprehensive policy, training to that policy and enforcing the policy with intrusive supervision, progressive discipline and clear documentation provides employers with an opportunity to ensure safety in the workplace and to limit their liability.
  3. Protect the owners’ personal assets by appropriately structuring the business. Liability on a variety of issues is the norm for many business owners. Structuring the organization as one that protects personal liability and assets, such as a Limited Liability Partnership, Limited Liability Corporation, or Corporation, ensures that the personal assets of the employer, shareholder, or owner generally cannot be reached in a lawsuit. Proper structuring of the business is a reliable method for ensuring personal assets are not depleted in a suit for employer liability.

Preparing for the Worst Helps Prevent It from Occurring

Employers should be vigilant in addressing factors that contribute to workplace violence. Employers and supervisors need to ensure they have a comprehensive policy and consistently enforce that policy.  Actions defined as workplace violence should not be ignored or rationalized that “it’s just words” or “they are just blowing off steam.” While it is not possible to always stop a determined individual from committing a wrongful act, policy, training, supervision and enforcement will protect employers facing liability claims and assure employees that the company is genuinely committed to and invested in establishing a safe and secure workplace.

If you have any additional questions on this critical issue, feel free to contact me at (312) 869-8500 or debra.kirby@hillardheintze.com.

 

This blog was co-written by Elena Sakelaris. 

 

This blog is not intended to offer any legal advice.

[1] Stephen J. Beaver, Beyond the Exclusivity Rule: Employer’s Liability for Workplace Violence, 81 Marq. L. Rev. 103, 108 (1997).
[2] Stephen J. Beaver, Beyond the Exclusivity Rule: Employer’s Liability for Workplace Violence, 81 Marq. L. Rev. 103, 110 (1997).
[3] Gregory T. Alvarez, Jason E. Ruff, Private-Sector Employees and Workplace Privacy in the Electronic Era, N.J. Law., August 2007, at 24 (2007).

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