Preventing and Dealing With Violence in the Workplace Issues
Employers have a variety of legally required rules they must follow as well as policies and procedures they can implement to prevent and deal with violence in the workplace.
Violence in the workplace is an issue that most small business owners will not have to deal with. However, the reality is that workplace violence is an increasing problem, and employers should be aware of what they can do to prevent it, as well as the various legal responsibilities and restrictions imposed on them.
The best approach to handling violence in the workplace is to prevent it. To curtail violence among employees in your business, take the following steps:
- Accept the possibility that workplace violence can occur in your workplace.
- Review your recruiting and hiring procedures — where permitted, institute criminal background checks and carefully check all references and former employers.
- Check external and internal security.
- Where appropriate, use a screening system.
- Determine if more stringent security measures are necessary.
- Provide external security to prohibit uncontrolled access by outsiders throughout the company.
- Identify those members of your staff (such as yourself) who may be likely targets and establish procedures to control access to them.
- Take every known threat seriously. Follow up and investigate completely.
- Prohibit the possession of all weapons, either inside the workplace or transported in an employee's vehicle on company property. State laws may affect whether or not weapons can be prohibited and other employer policies concerning violence on company property.
- Make sure all employees know how to reach your local police, ambulance, and security company if you have one.
- Attempt to develop a workplace environment that fosters trust among existing employees and management.
- Establish grievance procedures.
- If you need to fire an employee, do so with sensitivity, in a way that preserves the employee's dignity.
- Establish exit interview procedures that collect company keys, identification, etc., and alert you to any potential problems.
- Install routine security procedures when employees are fired.
- Emphasize humane and respectful treatment of all employees and pay particular attention to those who are terminated.
Be aware that the Occupational Safety and Health Administration (OSHA), mandates that employers provide a safe work environment for their employees, as part of the general duty clause. Preventing and dealing with violence in the workplace may be part of that duty.
State Weapons Laws Impact the Workplace
Several states have enacted laws that specifically apply to employers and violence in the workplace. Two of the main areas covered by these laws are the carrying of concealed weapons and the duty to retreat from deadly force. Alaska, Florida, Kansas, Kentucky, Maryland, Mississippi, Ohio, Oklahoma, South Carolina and Tennessee are among the states that have enacted laws that specify what employers can do regarding restricting weapons--typically guns--in their place of business.
Most of the states that have laws that specifically apply to employers allow employers to prohibit the possession of certain weapons on their private property if notice is posted or if consent is obtained. Some of these state laws have an exception for weapons in vehicles in parking lots whether they are public lots or private property owned by the employer.
Under general legal principles, an individual attacked in his or her home can use reasonable force, which may include deadly force, to protect his or her own or another persons life and has no duty to retreat to avoid doing so. This legal doctrine can also apply to the workplace if the law states that there is no duty to retreat if the self-defense takes place in any place where the person has the right to be, which includes the workplace by inference.
Several states have laws in place that specifically state that a person in the workplace can use reasonable force, which may include deadly force, to protect his or her own or another person's life and has no duty to retreat to avoid doing so.
Due to the unfortunate fact that violence in the workplace is an issue of ever-growing concern, state laws in this area are subject to change. Be sure to check your own state's law. Employers must be aware of state laws that are not only specifically employment related, but affect the workplace due to the broadness of their nature. Consult our state map to learn more about your rights and obligations.
Creating a Workplace Violence Policy
Part of your plan to prevent violence in your workplace should be to have a written policy that explains in simple but clear terms your stance on fighting or any violent behavior in the workplace.
You can draft a separate policy to address fighting and workplace violence or you can use several other policies you might have to cover those kinds of situations.
For example, if you have an inappropriate conduct policy (or a statement in your general work rules) that lists specific prohibited behavior, be sure that fighting is one of the behaviors mentioned.
You might also have a harassment policy. If so, make sure that fighting is included in and prohibited by your harassment policy.
Keep in mind that state laws may affect whether or not weapons can be prohibited and other employer policies concerning violence in the workplace.
Communicate your policy. Wherever and however you decide to address the issue of fighting, make sure that disciplinary procedures are clearly communicated to employees so that there won't be any question as to what will happen if they violate policy.
Here's an example of a statement addressing fighting:
You are expected as an employee of XYZ Corporation, to refrain from inappropriate conduct. You are encouraged to exhibit a professional demeanor during working hours. In addition, the following conduct is specifically prohibited:
sleeping on the job
excessive absenteeism or tardiness
use or possession of illegal drugs
dissemination of confidential information
violation of safety rules
possessing weapons on company premises
misrepresenting employment records
Conduct in violation of the above-listed prohibitions will subject you to disciplinary procedures.
Due to the constraints imposed by state laws regarding weapons, as well as other federal and state law restrictions on background checks and exams, it's imperative that employers know the warning signs of a troubled employee and how to handle a violent incident, if one should occur.
Warning Signs of a Violent Employee
In many cases, there are early warning signs of a potentially violent employee that are not communicated to the people who could take action or that are not taken as seriously as they should be. Generally speaking, employee behaviors that may be warnings include:
- depressed behavior
- paranoid behavior
- recent acquisition of a weapon
- talking about or posting a clipping of a violent incident in another workplace
One of the perceived barriers in screening out individuals who may be violent in the workplace is the protection guaranteed by the Americans With Disabilities Act (ADA). The following illustration shows how an employer can hire intelligently while not violating the ADA.
Jeb Jones applies for a position with the XYZ Company. His interview goes well and he appears qualified, but near the end of the interview Jeb discloses that he has a mental illness known as paranoid schizophrenia. The condition, Jeb says, is reasonably controllable with medication. Can XYZ Company refuse to consider Jeb on the basis of his condition and its potential impact on the safety of other workers?
No, XYZ Company cannot refuse to hire Jeb based on the interview alone. There's no indication that Jeb isn't qualified or that his condition is direct threat to the safety of others. However, the interviewer could ask questions about essential job functions, as well as open-ended questions that will get Jeb to talk about himself. For example, if the interview is for a high-pressure job with daily deadlines permitted questions would include:
Can you meet daily deadlines?
What are the three most stressful events you have experienced at work, and how did you handle them?
How have you handled stress in past jobs?
Also, a medical exam can be conducted after an offer of employment, if it is required of all applicants. An alternative would be to send a letter to Jeb's doctor outlining the essential job functions and asking the doctor if he can perform them without a significant risk of injury to himself or others and what can be done to reduce any risk. The employer should be able to inquire into his history of taking medication. This action documents that the employer desired to accommodate Jeb and that it did not act in a negligent manner.
Now assume that Jeb was hired and has a mediocre work history. He's been in arguments with coworkers and supervisors and his attitude has been described as "belligerent." Jeb has been disciplined for poor work performance, and he has been granted leave twice while confined to institutions of psychiatric care. A third hospitalization resulted after Jeb attempted to enter the mayor's office with a concealed weapon. When released as stabilized, Jeb seeks to return to her position. What can the employer do now?
The employer has a basis for its own doctor's exam to get medical evidence of whether or not Jeb is a threat. Documentation of reasonable accommodation efforts is necessary — a last-chance agreement may be considered. If independent medical support is forthcoming confirming that Jeb cannot perform the essential job functions, then the employer may terminate, assuming this is consistent with its policies. Nothing will guarantee that Jeb will not file a lawsuit; however, the employer has a strong defense consistent with the law.
Preventing and Handling Workplace Violence
Whether a situation is merely two employees arguing in the office or an actual violent confrontation, you must take steps to curtail these situations when they arise. Fighting among employees disrupts productivity and may hurt employee morale, depending upon the way you handle the situation.
Employee morale isn't the only thing that might get hurt if fighting occurs in the workplace! Employees themselves can get hurt and you may end up dealing with workers' compensation claims. If an employee exhibits violent behavior in the course of his or her job and hurts another worker or a customer, you may have legal troubles involving negligent hiring or retention claims.
A cab driver assaulted another cab driver who worked for a competing company. The cab company was liable for the competing cab driver's injuries because its driver had been acting within the scope of his employment at the time of the fight.
In another incident, a customer claimed that he was punched in the face by one bartender while another bartender held him. The customer successfully sued the bar owner for negligent retention of the employee. The employer knew of at least one incident with regard to the bartender's criminal record but had made no attempt to check further into his background or experience.
So if a situation arises that involves fighting, what should you do?
- Tell all employees that fighting will not be tolerated. Explain to them they will be subject to disciplinary procedures, up to and including termination, and that you are willing to call the police if the situation merits it.
- Communicate your policy, along with other prohibited conduct rules, in every way that is effective and feasible. Post the rules, provide employees with written copies, and discuss them when necessary.
- Educate yourself (and other supervisors, if applicable) in conflict resolution. Make sure you know how and when to intervene in situations and when to call the police.
Whatever you do, be consistent in the way fighting employees are treated. If you enforce your policy inconsistently, you may have more trouble than just violent employees on your hands.
Matthew and Robert, two employees who are members of minority groups get into a fist fight and are terminated. Kurt and Christopher, two non-minority employees get into a fist fight and reprimands are put in their personnel files. By enforcing the policy with different levels of punishment, the employer has opened itself up for charges of discrimination.
You should also know that an employee's knowledge of a coworker's violent tendencies can be a source of liability for you as the employer.
Sometimes employees will have shouting matches or on-going personality conflicts related to work or to personal differences and issues. Even though no punches have been thrown, this kind of behavior can kill productivity and distract other workers. Handle these kinds of conflicts as if they were fights. Get the facts, explain your policy, and work toward getting employees to resolve the matter or at least find a way to keep their differences from affecting their work.
Just as important as what you should do if an incident occurs, what you should definitely not do is:
- Don't ignore the situation.
- Even if the fight was serious and resulted in injuries, be cautious if you call the police. Don't tell the police, "he started it," and institute criminal proceedings. If the employee is not convicted, you could face a charge of malicious prosecution. Instead, ask the police to investigate the matter.
- Don't let charges of favoritism in the way certain employees are treated afterward destroy employee morale.
Planning for the Worst
If a violent incident occurs in your workplace, you'll have to act quickly and calmly. You'll have to make immediate decisions; help victims, family, and other employees; and, possibly, deal with the press. You'll have to respond to and manage the incident safely and effectively; protect the physical safety and emotional well-being of victims, employees, and other persons; prevent or minimize injury, damage and disruption; and return to normal as soon as possible. This can go smoothly only if it is planned in detail well in advance.
The first thing to do is summon help from the authorities. After that, assist the "survivors" and return the workplace to normal.
Remember, you must provide leadership for planning and preparation, both during the emergency and for recovery efforts.
Handling the press. If the incident involves a fatality or is otherwise unusual in your area, you will most likely be contacted by the press. You must be prepared to handle their inquiries and provide accurate information.
It's a good idea to think about how you would handle the press in such a situation. To be prepared, the plan should include:
- Keeping accurate information (including company history, number of employees, business purpose, names of key management people) about the organization readily available. Some businesses maintain a file cabinet with this information.
- Naming a company spokesperson and possibly a backup person. The spokesperson will need accurate information about the event.
- In general, answering questions briefly, not avoiding questions, and staying "on the record;" that is, only giving information that you'd feel comfortable reading in the paper the next day.
- Never lying to the press.
Dealing With the Aftermath. There are two difficult tasks to manage in the aftermath of a violent incident. The first is to assist survivors and the next is to return to business as usual as quickly as possible. You need to be concerned about more than just any injured employees — the group includes coworkers, family, and friends. Each of these people will need support.
Seriously consider loosening up time-off policies so that people who need time to recover can take extra hours or days off when they do not have any time available.
Is further protection necessary? Some states have enacted laws that allow employers to seek restraining orders and/or injunctions prohibiting violent acts or threats of violent acts for the protection of their employees. If the situation warrants it, check your state laws to learn whether this protection is available.
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