Avoiding Tragedy In The Workplace

Friday, April 1, 2005 - 00:00


The Washington-Metropolitan area was recently rocked by an incident of workplace violence.On January 9, 2005, at about 2:30 p.m., Mustafa Mohamed, a housekeeper at the Goodwin House Retirement Home in Alexandria, Virginia, attacked and injured six people, including co-workers, elderly residents, and visitors. Three of the victims were hospitalized.One suffered a broken neck and another required 200 stitches after being slashed in the face by Mohamed. While the motive is still unclear, the attack apparently stemmed from a dispute between Mohamed and his supervisor. As he attacked his victims, Mohamed was heard saying "[s]he didn't respect me."1Unbeknownst to the retirement home, evidence has now emerged that Mohamed had been accused of attacking a co-worker before - but the charges were dropped.2 Without a conviction, the incident was not uncovered by the background check run by his current employer. While the incident was highly traumatic to the victims and the workplace as a whole, fortunately, no one was killed.

Others have not been so lucky. Seven employees of the human resources and accounting departments at hi-tech company Edgewater Technologies in Wakefield, Massachusetts, died at the hands of another employee on December 26, 2000. Apparently, the employee, software engineer Michael McDermott, was upset about an IRS garnishment. He chased down and killed the employees in the departments that processed the garnishment.3

Such sensational stories seem too frequent, but less infamous examples of workplace violence take place with far greater frequency. As reported by the FBI to the House Sub-Committee on Employer-Employee Relations on September 26, 2002, "sensational multiple homicides represent only a tiny fraction of violent workplace incidents. The vast majority are lesser cases of assaults, threats, harassment and physical or emotional abuse that makes no headlines and, in many cases, are not even reported to company managers or law enforcement."In addition, according to the National Institute for Occupational Health and Safety (NIOSH), nearly one million persons are assaulted while at work or on duty (non fatal) each year.4 A breakdown by workplace found that 61% occurred in private companies, 30% occurred among government employees, and 8% of the victims were self-employed. The annual costs for violence and other hostility in the workplace comes to about $13.5 billion in medical costs and 500,000 workers missing 1.75 million days off.

Litigation costs arising from victims' claims of negligent hiring/retention/supervision and inadequate security have cost employers millions. Recent awards include $5.2 million paid to a supervisor shot and permanently disabled by a disgruntled fired employee; $5.49 million against a temporary employment agency that failed to adequately screen an employee provided to a client after that employee fatally stabbed a worker at the client-company; and a North Carolina jury award of $7.9 million to the families of two men who were killed in the workplace. These figures emphasize that employers cannot afford to ignore the real dangers and costs of workplace violence.

Develop A Prevention Program

The first step in combating workplace violence is prevention. Enact and distribute a written "zero-tolerance" policy prohibiting intimidation, harassment, and threats or acts of violence (to property or person). This absolute prohibition against workplace violence should be supported by policies that require appropriate and professional conduct for all employees.Employees should have a clear understanding of the behavioral expectations of management.All employees must understand that incidents of disruptive behavior (including verbal threats) and workplace violence will not be tolerated and could result in immediate discipline or termination. Proper training, proactive management, and appropriate disciplinary procedures will make employees aware of the consequences of unacceptable behavior and provide a legal foundation for a termination. Employers should also recognize that discipline is not their only management tool in preventing workplace violence. Oftentimes a manager is the first to notice an unusual decline in work performance. If caught early, the manager may be able to determine that the employee's problems (precursors to workplace violence) stem from personal issues, which could be addressed and resolved through private counseling.

An important component to an employer's policy can be the sponsorship of an effective employee assistance program (EAP), which may be utilized by employees whether in person, online, or by telephone. Professionally trained EAP counselors assist employees to resolve issues including, stress, substance abuse, family issues, financial problems, psychological and relationship issues, and child and elder care needs. Numerous studies have shown that employees are more willing to express their unique problems with an EAP counselor because they are assured of confidentiality, as opposed to internal human resources (HR) staff for fear that their secrets will be revealed to management or their co-workers. Used effectively, an EAP can help workers face and resolve personal issues that affect work and create the potential for violence.

Due Diligence In The Hiring Process

Due diligence is another important step towards the eradication of workplace violence.HR can play an important role in the workplace violence prevention program. Allpotential employees (even for entry-level positions) should be interviewed by a trained company employee. HR should verify everything on the employment application and diligently conduct reference checks.Even if a reference refuses to supply information, the fact that you have made the effort helps demonstrate due diligence and may avoid claims of negligent hiring/retention.

Similarly, to the extent permitted by law, employers should ask (and verify responses) about prior criminal convictions. Employers should never first learn that HR failed to conduct a background check on an employee/assailant because (for instance) he would be handling money and then find out in litigation on a negligent hiring/retention case that the employee/assailant was recently convicted of a violent crime.

Know The Warning Signs

Pay Attention:Supervisors and HR should be sensitive to behavioral changes in employees that may signal a possibility for violence:

  • Sudden dramatic change in work performance

  • Emotional problems, drug or alcohol abuse, that encroach on work environment

  • Domestic violence

  • Sudden personality withdrawal

  • Overreaction to stress, open resentment, hostility and/or anger toward the employer or a co-worker

  • Discussing suicide or murder, even if reportedly a "joke"

  • Bringing weapons to the office or mentioning the possibility of bringing weapons in to work

Take Appropriate Action: If a determination is made that a potential for violence exists from any employee, with proper analysis, the employer may exclude the individual from employment for safety reasons. Under the Americans with Disabilities Act (ADA), an employer may refuse to hire an individual if he/she poses a direct threat to the health or safety of him/herself or others. This must be a careful analysis - an employer cannot refuse to hire a person simply because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. In addition, employers are permitted to conduct a "direct threat" analysis to determine if a current employee poses "a significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation."5 In order to make that assessment, the employer must consider the individual's ability to perform the functions of the job, considering available medical evidence. For example, if an individual has had several escalating incidents of disruptive behavior in the workplace including fighting and using threatening language towards another employee, the employer can refer the individual for a psychological assessment to determine if a potential threat exists.HR and legal counsel should be involved in any decision to exclude an employee based on a "direct threat."

Employers should be especially sensitive to signs of domestic violence. If there is any indication that the domestic issues will encroach upon the workplace or jeopardize the safety of the workforce, an employer must take reasonable precautions to protect all of its employees.Employers may refer the employee and their abusive partner to the EAP. If that is ineffective, and there is a credible threat that the employee's abusive relationship will carry over to the office, the employer may have no choice but to remove the victimized employee from the premises whether on an emergency leave of absence or through termination of employment.

A growing number of states have enacted legislation authorizing employers to seek temporary restraining orders on behalf of employees who have received a credible threat of violence that may be carried out at the workplace.Under the California Workplace Violence Safety Act, the state appeals court in Chubb & Son v. McDermott upheld a trial court's decision to grant four separate restraining orders against a former employee, spanning two company offices in California and Colorado.The action arose after the breakup of a relationship between a female and male employee, when the female employee displayed erratic and dangerous behavior, including threatening (in calls and email) co-workers who arranged for the couple to meet and separate threats of suicide.Such temporary restraining orders can be used to prohibit further acts or threats of violence whenever an employee is acting within the scope of his employment and may forbid stalking or harassing via telephone, email or facsimile.

Termination Procedures

Terminations can be traumatic events that are at the root of workplace violence episodes.However, there are ways to reduce some of the stress and fear that surround terminations.In all cases, the discharge should be handled in a professional and appropriately thoughtful manner so that the subject employee retains dignity and believes that there is a future beyond the discharge.Ideally, terminations should not occur "on-the-spot."Preparing an outline of the underlying reasons for the termination and reviewing it with HR and legal counsel is a good management practice.If a termination must occur, it is always beneficial to prepare a limited script of issues to be discussed during the termination.

Having HR and legal counsel involved is also critical to assist with the assessment of potential difficulties.While we do not advocate a transition package in every case, in certain situations, employers may offer severance (in exchange for a release) and outplacement assistance to ease the employee's transition from the company.The goal is to reduce the possibility that an aggrieved employee will seek revenge upon those he feels responsible for the discharge.Whether or not difficulties are anticipated, the employer should collect keys, pass cards, and other means of office access.Where a common pass code is used for office access, the code should be changed following terminations.

If there are any indicators that violence is a potential during a termination, consider hiring appropriately trained security personnel.As a proactive step, HR may want to coordinate with local police, legal counsel, or outside experts to conduct a risk assessment.

Conclusion

Much workplace violence can be avoided with the proper management of the workforce.Proper assessment of each situation is a must to avoid legal liability.

1The Washington Post, January 12, 2005; Page B01.

2Id.

3http://archives.cnn.com/2000/LAW/12/27/office. shooting.03 (December 27, 2000).

4Violence in the Workplace, DHHS (NIOSH) Publication No. 96-100

529 C.F.R. §1630.2(r)

Madonna A. McGwin is a Senior Counsel in the Washington, DC office of Holland & Knight LLP. She can be reached at (202) 663-7268. Damien G. Stewart is an Associate in the firm's Washington, DC office. He can be reached at (202) 457-7163.

Please email the authors at madonna.mcgwin@hklaw.com or damien.stewart@hklaw.com with questions about this article.