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Workplace Violence: 5 Steps to Avoid Legal Liability

The National Institute for Occupational Safety and Health (NIOSH) defines workplace violence as "violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty."  Violent crime in the workplace has become more and more common. From shootings to stabbings, employers are having to address a multitude of employee violence issues. Typically, this involves an employee (or former employee) acting or threatening to act violently towards another employee.

In additional to the tragedy of the event itself, there are legal risks associated with these events. Although an employer will assert as a defense that the employee was not acting in the course and scope of his employment at the time of the violent act (which is almost always a true statement), there are other theories of liability that have been advanced that give rise to potential legal claims.  These claims often result in large jury awards in light of the harm caused (serious injury/death) to a co-employee or third party.

The most likely claims are for negligent hiring, retention and/or supervision. Under these theories, an employer may be found vicariously liable for the conduct of an employee, even if it was violent or criminal conduct, if the employer knew or should have known that the employee posed a risk of harm to others. Liability typically requires a finding that the employer  (a)  should not have hired the employee in the first place based on the employee's history that should have been discovered during a pre-employment background check, (b)  should have terminated the employee as soon as the employee's propensity towards violence was known, or (c) failed to provide proper supervision to the employee to ensure that the employee did not engage in inappropriate acts. Employers have been held liable for failing to conduct appropriate background checks, for retaining employees who are known to be unfit or that present a risk of violent or inappropriate behavior, and for failing to supervise unsafe or dangerous employees after they have been put on notice of their violent propensities.

To minimize potential exposure for legal claims of this type, an employer should:

1. Conduct thorough pre-employment background checks;
2. Provide regular and continuing education and training to employees on safety and workplace violence;
3. Provide appropriate security at the workplace, including access control;
4. Establish a strict "no violence" policy that provides for discipline, up to and including termination, in the event of any acts or threats of violence; and
5. Establish EAPs to assist workers who need help in dealing with stress and related issues.

Bottom Line:  Employers must take reasonable steps to try and prevent workplace violence.