When Harassment Meets Violence in the Workplace

When Harassment Meets
Violence in the Workplace
Presented by:
Charles Wilson
Cozen O’Connor
Quiz
What Do You Know About Workplace
Violence?
What Is Workplace
Violence?
• Workplace violence includes: (check all
that apply):
___ physical assault
___ threatening behavior
___ verbal abuse
___ harassment
True or False?
• Violence is the leading causes of death on
the job.
False
• The leading cause of death on the job is vehicle
accidents.
• Violence is the SECOND leading cause of death in
the nation.
True or False?
• Disputes between
co-workers are the
main motive for
workplace homicides.
False
• Robbery is the main
motive for workplace
homicides nationwide.
• Co-worker violence
represents only 8% of
workplace homicides
nationwide.
Quiz
• How many workers are murdered on the
job each week in the U.S. (workplace
homicides)?
Answer…
• According to NIOSH (National Institute for
Occupational Safety and Health), 17
workers are murdered on the job each
week in the U.S.
Quiz
• How many U.S. workers are victims of
non-fatal assaults on the job each week?
Answer…
• According to NIOSH, 33,000 workers are
victims of non-fatal assaults on the job
each week in the U.S
Worker’s Compensation and
Workplace Violence
• Typically, an employee injured by
workplace violence cannot bring a claim
against his employer based on a
violation of the general duty clause of
the OSH Act.
– Instead, an injured employee’s remedy will
be under workers’ compensation.
Worker’s Compensation
Exclusivity
• Generally, an employee receiving workers’
compensation benefits cannot also bring a
claim for negligence against his or her
employer.
– This is known as the “exclusivity provision”
• In some cases, an employee can avoid the
exclusivity provision if one of the following
exceptions apply:
– Intentional tort theory
– Dual capacity doctrine
Negligent Retention
• Liability for negligent supervision and
retention is based on state law. In
general, an employer is liable for harm if it
is negligent in hiring, supervising or
retaining employees.
– For example, if an employee commits an act against
another employee after the employer was aware of
the risk of danger, the injured employee may claim
that the employer did not exercise reasonable care
in retaining or supervising an employee.
Kase v. Unnamed Trucking Company
•
Plaintiff James Kase filed suit against the trucking company as a result of an
altercation between Kase and the trucking company’s employee. Kase was
sitting in a parked truck at a Pilot truck stop near Duncan, South Carolina. He felt
another vehicle bump the rear of his vehicle and exited to investigate. Although
Kase was not injured in the initial collision and the damage to his truck was
minimal, a physical altercation ensued between Kase and Michael Ebert, the
driver of the other vehicle. Ebert fled the scene but was later arrested. Kase
alleged that he was injured during the fight and that the injuries caused him to
miss several months of work and eventually lose his job.
•
Kase presented evidence of Ebert’s poor driving record, including numerous
violations; Ebert’s insubordinate behavior; Ebert’s marital difficulties and financial
problems. The Court concluded that because the fight between Kase and Ebert
did not take place on the motor carrier’s property and because Ebert had exited
the company vehicle before the altercation started, it did not involve the use of
the motor carrier’s property and was essentially outside the control of the
trucking company. Therefore, the Court concluded that as a matter of law the
trucking company could not be liable for either negligent supervision or negligent
retention. In reaching this holding, the Court essentially concluded that Ebert
was beyond the control of the trucking company at the time of the altercation,
meaning that the trucking company would not be liable for negligent supervision
or retention.
Wood v. Safeway, Inc.
• A mentally handicapped store employee sued the store
and the janitorial service, seeking to recover for sexual
assault committed by the janitorial service’s employee.
The court held that the employer was not liable for
negligent hiring or retention because an assault was not
foreseeable. The assailant had no criminal record and
the company had received no complaint of sexual
harassment.
McDonald’s Corp. v. Ogborn
•
Between 1994 and 2004, an unknown individual placed a series of hoax telephone calls to
McDonald's and other fast food restaurants, pretending to be a police officer. During that time, he
convinced restaurant managers, employees, and third parties to conduct strip searches and even
sexual assaults at his direction. The caller was successful in accomplishing his perverse hoax more
than thirty times at different McDonald's restaurants alone, including several in Kentucky.
•
McDonald's corporate legal department was fully aware of these hoaxes and had documented them.
The evidence supports the reasonable conclusion that McDonald's corporate management made a
conscious decision not to train or warn store managers or employees about the calls. The evidence
demonstrated that proper training or warning would have prevented successful repetition of the
hoaxes.
•
On April 9, 2004, eighteen-year-old Louise Ogborn was working a shift in a McDonald’s restaurant
located in Kentucky. During her shift, an unknown individual telephoned the restaurant and assistant
manager Donna Summers answered. The caller falsely identified himself as a police officer and
claimed to be investigating a recent theft of a purse or wallet at the restaurant. According to the
caller, the perpetrator was a McDonald's employee. He described a female suspect which Summers
believed fit Ogborn. Ogborn was summoned to the office and informed that she was the subject of an
“investigation” into this theft. The series of events that unfolded thereafter lasted more than three
hours.
•
Ogborn filed a negligence action against the fast-food restaurant chain and her supervisor after the
impersonator persuaded Ogborn’s supervisor and her supervisor's fiance to subject Ogborn to a strip
search and a sexual assault.
•
Ogborn was awarded five million dollars in punitive damages.
Traditional Defenses to
Negligence Claims
• Unforeseeable event
• Superseding cause
– An employer may
argue that an
individual’s violent act
was a superseding
cause that negates
the employer’s
negligence as the
proximate cause of
the injured party’s
injuries.
Avoiding Liability for Negligence Claims
• Draft and maintain a workplace violence policy that:
– informs employees that threats or violent acts at the workplace
are prohibited;
– sets procedures for employees to report threats or violent acts;
and
– establishes a disciplinary procedure for employees who violate
the policy.
• Promptly investigate any complaints of workplace
violence and consider discipline, up to and including
termination, if the complaint is substantiated.
• Draft and maintain a workplace safety plan and
implement any necessary precautions if a threat against
an employee
• is substantiated.
Occupational Safety and
Health Act
• OSHA imposes a general duty on employers to
provide a provide a safe workplace.
– A place of a place of employment which is free from
recognized hazards that are causing or are likely to cause
death or serious physical harm.
• Depending on the circumstances and extent of
abuse, an employer could face costly fines and even
criminal penalties if it fails to take reasonable steps to
prevent a known abuser from carrying out such
propensity in the workplace.
• Beware of exposure for harassment, discrimination,
tort liability for negligent hiring, supervision, training
and retention
Employer’s Obligations
Once an employer is on notice of an employee’s propensity
to commit domestic violence, it has a duty to address and
prevent risk of harm to other employees, which can include
training, allowing the employee time off to seek counseling,
reassigning the employee to a position or tasks that would
lessen the risk of harm to co-workers, or termination.
What About Off-Duty Conduct?
• Employers generally have no legal obligation to report
off-duty, offsite domestic violence to law enforcement.
– Employers run the potential legal liability for defamation,
invasion of privacy or similar claims if their report proves false.
– steer clear of off-duty issues whenever possible.
• The law generally does not require that an employer
regulate off-duty conduct if that conduct does not have
connection with, or lead to involvement with, the
workplace
– There are risks related to public opinion and to an ever-growing
sense of an ethical duty for people who can act, to do so, to
stop domestic violence.
OSHA’s Four Types of Workplace
Violence
Type 1: A robbery or other criminal act committed
by a stranger.
Type 2: An assault by a client, customer,
member, passenger, inmate, student, or other
person who receives services from the victim.
Type 3: A threat or violent act on the job by an
employee, supervisor, former employee, or
manager.
Type 4: Violence by a domestic partner or
relatives of the employee (new category).
What is a Workplace?
• Any location either permanent or
temporary where an employee performs
any work-related duty.
– Includes, but is not limited to, the building,
surrounding perimeters, parking lots, field
locations, client’s homes and traveling to and
from work assignments.
What is Workplace Violence?
• Any physical assault, threatening behavior,
or verbal abuse occurring in a work setting
including: a
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aggravated assault,
sexual assault,
homicide,
includes acts committed during robberies
• The second leading cause of death in the
workplace overall
• The leading causes of death in the workplace
for females
1 out of 20 women will be the victim of a stalker
Example of Violence in the
Workplace
• Domestic Violence
• Stalking
• Workplace Violence
Domestic Violence – Example of
Emotional Abuse
• Emotional abuse is when an abuser:
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Continuously criticizes, calls names, or shouts
Insults or drives friends or family away
Humiliates a person in private or public
Keeps a person from working, controls the money,
or makes all the decisions
Refuses to work or to share money
Takes the car keys or money
Regularly threatens to leave or tells a person to
leave
Threatens to kidnap the children when angry
Manipulates with lies and contradictions
Domestic Violence – Example of
Physical Abuse
• Physical abuse is when an abuser:
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Pushes, shoves, kicks, or chokes
Holds a person down to keep them from leaving
Hits, slaps, or bites
Throws objects
Locks a person out of the house
Abandons a person in dangerous places
Refuses to help when a person is sick, injured, or
pregnant
– Forces a person off the road or drives recklessly
– Threatens to hurt a person with a weapon
Costs of Violence
• 1,751,100 lost work days a year
• Domestic violence cost $31 billion a year
• 54% of battered women miss work an average of 18
days
• 74% of abused women are harassed at work
• 56% of abused women are late for work at least 60 days
a year
• 28% of abused women leave work early 60 days a year
• ½ of abused women are disciplined for low job
performance
How Can Violence Be Prevented
on the Job?
OSHA Risk Factors
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•
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•
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Working alone or in small numbers
Working late night/early morning
Working with money
Delivering passengers, goods, or services
Having a mobile workplace like a taxicab or
police car
• Working in high crime areas
• Guarding valuable property or possessions
• Contact with the public
Prevention Strategies
• Don’t work alone late at night or during early morning
hours
• Provide security escorts to employees working evenings
• Install security equipment (panic buttons, cellular
phones, alarm systems, etc.)
• Redesign workspace to prevent entrapment of staff
• Train staff in ways to defuse violence
• Provide metal detectors in buildings
• Place curved mirrors at hallway intersections
• Install good lighting indoors and outdoors
• Prepare contingency plans for clients who “act out”
• Control access to employee work areas.
OSHA’s Recommendations
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Policy statement
Threat assessment team
Workplace security analysis and record review
Hazard Assessment
Incident reporting and follow-up procedures
Training and education for all workers
Recordkeeping
Evaluation
Policy Statement: this may address purpose and scope of the policy,
definitions of workplace threats and violence, and consequences for
violations.
Threat Assessment Team: this team may represent all areas and levels
of the company, and will assess the vulnerability of the workplace and
reach agreement on preventive actions to be taken.
Workplace Security Analysis: the Threat Assessment Team will
analyze the potential hazards, inspect the workplace, and review at-risk
work tasks to include:
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exchange of money with public;
working alone or in small numbers;
working late night or early morning;
guarding valuable property or possessions;
working in community settings; and
staffing levels.
Hazard Assessment: the Threat Assessment Team will take into
consideration the following areas in assessing hazards:
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OSHA logs;
incident reports;
assaults or near-assaults;
insurance records;
police records;
accident investigations;
training records;
grievances; and
Other.
Incident Prevention and Investigation: all reported incidents will be
evaluated by the Threat Assessment Team to determine program
revisions and security reassessment.
Training and Education: training will be conducted for employees,
supervisors and managers every two years on the following topics:
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review of and definition of workplace violence;
program description;
reporting instructions;
recognition and response;
security hazard identification; and
review of security equipment and procedures, defusing hostile situations,
emergency response, post incident procedures.
Recordkeeping: accurate records will be kept on the following:
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all incidents of workplace violence;
lost-time injuries with doctor and supervisor reports as needed;
verbal and physical abuse, aggressive behavior; and
Threat Assessment Team meeting minutes.
Best Practices for Responding to
Possible Domestic Violence
• Investigate
• Provide Help for Employee Victims
• Respond Quickly
Investigate
• When conducting and investigation into whether an
employee is committing domestic violence:
– Do not prejudge; things are not always as they first appear.
– Investigate and go to where the evidence leads you.
– Allow those involved, both the alleged victim (if also an
employee or otherwise available) and the alleged perpetrator, to
have their say before reaching any conclusive judgments.
– Manage any publicity by explaining that the employer has a
process, and it must protect the integrity of the process to serve
all persons affected.
– Consider suspension or administrative leave pending the
outcome of the investigation.
Help for Employee Victims
• Employer may have a duty to investigate (i.e. in
the context of harassment)
• Employer has a duty to take reasonable steps to
promptly and effectively end an “harassment”.
– Prompt investigation
– Possible administrative leave for one or both
employees
• Advise employee to report domestic abuse to law
enforcement.
• Provide employee with information on employee
assistance programs (EAPs)
Respond Quickly
• Time is usually of the essence in an
investigation relating to domestic violence.
– Important to review all accessible records,
such as police reports, orders of protection as
soon as possible.
– Remember, any assessment with respect to
discipline or corrective measures must be
consistent.
Five Warning Signs of Escalating
Behavior
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Confusion
Frustration
Blame
Anger
Hostility
Warning Signs of Confusion
• The person appears bewildered or
distracted. They are unsure or uncertain of
the next course of action.
• How would you respond to a person
who is confused?
Responses To Confusion
• Listen attentively to the person.
• Ask clarifying questions. Give factual
information.
Warning Signs of Frustration
• The person is impatient and reactive, and
resists information you are giving them.
They may try to bait you.
• How would you respond to someone
who is frustrated?
Responses to Frustration
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Move the person to a quiet setting or location.
Reassure them.
Talk in a calm voice.
Attempt to clarify their concerns
Warning Signs of Blame
• The person places
responsibility on everyone
else. They may accuse
you or hold you
responsible. They may
find fault with others.
They may place blame on
you.
• How would you respond
to someone who is
blaming others?
Responses to Blame
• Disengage with the person and bring a
second party into the discussion (e.g. a
shop steward). Use a teamwork
approach. Draw the person back to
facts.
• Respectful concern and interest may
demonstrate that aggression is not
necessary. Focus on areas of
agreement to help resolve the situation.
Warning Signs of Anger
• The person may show a visible change in
body posture. Actions may include
pounding fists, pointing fingers, shouting,
or screaming. This signals very risky
behavior.
• How would you respond to someone
who is angry?
Responses to Anger
• Don’t argue with the person. Don’t offer
solutions. Prepare to evacuate the area or
isolate the person.
• Contact your supervisor and/or security
personnel.
Warning Signs of Hostility
• Physical actions or threats appear
imminent. There is an immediate danger
of physical harm or property damage.
Out-of-control behavior signals that the
person has crossed over the line.
• How would you respond to someone
who is acting hostile?
Responses to Hostility
• Disengage with the
person and evacuate
the area. Attempt to
isolate the person if it
can be done safely.
• Alert your supervisor
and contact security
personnel
immediately.
Best Practice for Responding to General
Incidents of Workplace Violence
Responding to an Angry Client
You work for the local department of public
safety. There is a long line of people waiting
to be seen. Things have gotten backed up
because your department is short staffed
today. One man becomes belligerent and
starts complaining from the back of the line.
He gets increasingly hostile. Other clients in
line begin to look alarmed and are getting
visibly upset.
Prevention Measures for Responding
to an Angry Client
• Take the person out of the line and move him to a
separate room.
• Try to calm him down.
• Try to stop the escalation by explaining why the line is
moving slowly today. Let the person tell his side.
• Don’t put yourself at risk of bodily injury. Make sure
you have an escape route out of the room.
• Call security if the person becomes threatening.
• If the situation continues to escalate, leave the room
and shut the door. Ask the person to stay in the room
until someone comes who can help him.
Managing Disputes Between CoWorkers
Two female co-workers have had a longstanding
dispute for several years. Recently, one of the
women went to her supervisor saying that the coworker had made several threatening remarks to
her. The co-worker had indicated that if she
came within ten feet of her, she would make sure
she would not leave the office in one piece. The
co-worker says these things under her breath,
when no one else is around. The employee
expresses much fear about her ability to work
with this woman, and wants the supervisor to do
something.
Prevention Measures for Managing
Disputes Between Co-Workers
• Try to keep the workers separated.
• Ask the workers to sit down and calmly
discuss the issue.
• Ask if they would like a mediator to help
them. The shop steward could be
called to help mediate the situation.
• If the situation does not get resolved,
call the manager.
Contact:
Charles Wilson
Cozen O’Connor
Telephone: 713-750-3117
Email: cwilson@cozen.com