Caught in the Crosshairs at Work

CAUGHT IN THE CROSSHAIRS AT WORK Practical Considerations for Employers to Prevent and Address Violence in the Workplace

Rebecca L. Baker & Christopher P. Jaynes

Christopher P. Jaynes

Rebecca L. Baker

THE IMPACT OF WORKPLACE VIOLENCE Today’s Purpose… 1. Understand the Big Picture

2. Identify Risk Factors

3. Review Prevention Policies

4. Discuss Response Strategies

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WORKPLACE VIOLENCE IN THE NEWS Virginia Beach - May 31, 2019 • Long-time municipal engineer submitted his resignation and killed twelve co-workers. • No clear warning signs, no disciplinary history, and no obvious motive. • Company did not retrieve/disconnect access card at time of termination. Aurora, Illinois - February 15, 2019 • Fifteen-year warehouse employee opened fire during his termination meeting with human resources. • Out-of-state felony conviction was not caught during pre-employment background check or before firearm purchase.

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BACKGROUND STATISTICS

U.S. Fatal Occupational Injuries by Type (2011-2017)

1000 1500 2000 2500

0 500

2011

2012

2013

2014

2015

2016

2017

Intentional Violence and Injuries

Transportation Incidents

Fire or Explosion

Fall, Slip, Trip

Exposure to Harmful Substances or Environments

Contact with Objects and Equipment

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BACKGROUND STATISTICS

U.S. WORKPLACE DEATHS DUE TO INTENTIONAL INJURY BY A PERSON Suicide Intentional Shooting Other Intentional Homicide

106

107

94

103

82

102

63

394

351

322

381

307

365

354

291

282

280

275

250

249

229

2 0 1 1

2 0 1 2

2 0 1 3

2 0 1 4

2 0 1 5

2 0 1 6

2 0 1 7

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CATEGORIES OF WORKPLACE VIOLENCE Type I: Unrelated & Intrusive Violence/Criminal Intent ‒ Violence by strangers Type II: External & Business-Related Violence ‒ Violence by customers, patients, clients, etc. Type III: Internal Violence/Worker-on-Worker ‒ Violence by co-workers Type IV: External & Personal Violence ‒ Violence by spouse or other personal relationship

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INTERNAL AND EXTERNAL CONDITIONS THAT HEIGHTEN RISK Internal Conditions:

‒ Understaffing and/or overworked ‒ Poor management or supervision ‒ Layoffs and reassignments

‒ Inconsistent and/or inappropriate discipline ‒ Lack of counseling and assistance resources ‒ Employee isolation External Conditions:

‒ Location factors (rural, remote, high crime, etc.) ‒ Customer/Client Base ‒ Public Access

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THEORIES OF EMPLOYER LIABILITY FOR EMPLOYEE’S CONDUCT OSHA & the “General Duty Clause” • The Occupational Safety & Health Administration (“OSHA”) defines workplace violence as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. Workplace violence ranges from threats and verbal abuse to physical assaults. • The OSH Act does not specify a standard governing workplace violence. But on March 4, 2019, in Secretary of Labor v. Integra Health Mgmt., Inc. , a case of first impression, the Occupational Safety and Health Review Commission held that the Act’s general duty standard obligates employers to protect their employees from workplace violence. • The general duty standard requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

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THEORIES OF EMPLOYER LIABILITY FOR EMPLOYEE’S CONDUCT Other Potential Theories of Liability • Negligence claims ‒ Negligent hiring, retention, supervision, ... • Common law claims ‒ emotional distress, failure to warn, wrongful death, ... • Intentional torts ‒ Assault, battery, intentional infliction of emotional distress…

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THEORIES OF EMPLOYER LIABILITY FOR PROBLEMATIC POLICIES • Poorly-run investigations can result in privacy and defamation claims • Title VII claims can arise out of mishandled domestic violence issues • Americans with Disabilities Act (“ADA”) claims can stem from: ‒ Mismanaged inquiries into an employee’s mental health ‒ Actions on the basis of a real or perceived mental illness or an employee’s mental health history ‒ Changes in conditions that disproportionately impact a particular employee ‒ Response strategies that do not account for an employee’s limitations

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PREVENTION - PROACTIVE MEASURES AGAINST POTENTIAL WORKPLACE VIOLENCE GOAL: IDENTIFY. ASSESS. PREVENT. Consider your business from three perspectives… 1 st Environmental ‒ Facility design, security systems, and external factors

2nd – Organizational and Administrative ‒ Programs, policies, training, staffing practices, etc. 3rd – Behavioral and Interpersonal

‒ Communications, reactions, and interpersonal dynamics

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PREVENTION - ENVIRONMENTAL

1. Address External Risk Factors • Key Elements: ‒ Identify what risks are inherent and unavoidable ‒ Manage what you can change – facility features, staffing, security measures…

‒ Provide proper equipment for communication ‒ Ensure a trained and knowledgeable workforce

2. Emergency Evacuation Considerations • Facility design – Are there appropriate exits? Are there areas of refuge/hiding places? Can parts of the facility be divided and locked automatically in the event of an emergency? • Panic buttons and alarm systems • Mass alert systems (automatic text message, email, phone alerts, alarms, etc.) ‒ By leveraging all communication channels, there is a greater chance every employee will get the necessary information in time.

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PREVENTION - ORGANIZATIONAL AND ADMINISTRATIVE 1. Zero Tolerance for Aggression and Violence • Key Elements: ‒ Define prohibited conduct and draw your line ‒ Set expectations for discipline ‒ Provide access to your policy and alert employees to all changes

2. Weapons in the Workplace • Key Elements: ‒ No weapons in the workplace ‒ Be aware of applicable state laws ‒ How do you respond to the employee who asks to bring his gun to work to protect himself in the event of violence at work?

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PREVENTION - ORGANIZATIONAL AND ADMINISTRATIVE Know the Applicable Weapon and Gun Laws • Key Elements: ‒ Gun laws vary state-by-state, know employer and employee rights ‒ Know and respect carve-outs such as “parking lot laws”

Laws Protecting Employees’ Right to Possess Firearms in Personal Vehicles (Red)

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PREVENTION POLICIES - ORGANIZATIONAL AND ADMINISTRATIVE 3. Implement Lawful and Thorough Search Policies • Key Elements: ‒ Know your state’s laws regarding employee privacy ‒ Alert your employees: no reasonable expectation of privacy ‒ Cover all areas you want to search – lockers, desks, personal vehicles, etc.

4. Implement Proper Termination Procedures • Key Elements: ‒ Understand risk factors and plan appropriately ‒ Ensure a professional, discrete process for terminations ‒ Consider a telephonic termination meeting

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PREVENTION POLICIES - ORGANIZATIONAL AND ADMINISTRATIVE

Terminations: Assess the Threat • Consider using a neutral manager. If there is manager or supervisor who has been the object of threats or anger, that person should not be the person to conduct the termination. • Wait until the end of the workday to terminate, if possible. • Have security nearby – not in the same office, but close enough to hear signs of a problem and to act. • Do not take a break – a break can allow for time to retrieve weapons. • Minimize any reasons why the employee would have to revisit the workplace. Mail a check; have uncollected belongings sent to the person’s home via a delivery service. Cut off all access immediately. • Allow the person as much dignity as possible, but be brief and to the point. Do not get into a back and forth or go over painful details of the employee’s failures—don’t feed the anger. • Emphasize any severance benefits, outsourcing, and EAP help that may be available.

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PREVENTION POLICIES - ORGANIZATIONAL AND ADMINISTRATIVE 5. Policies Related to External Threat Risks • Key Elements: ‒ Domestic violence reporting and response policies o Restraining or protective order in place? o Recent photo or description of the abuser; alert security and reception o When necessary, relocate the worker so that he or she cannot be seen through windows or from the outside. o Do not include the employee’s contact information in publicly available company directories or on the company website. ‒ Other non-work related threats of violence

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PREVENTION - BEHAVIORAL AND INTERPERSONAL 1. Know Your Workforce • Key Elements in the Hiring Process: ‒ Application Review ‒ Background Screening (be careful regarding criminal records!) ‒ Interviews

2. Promote Good Mental Health and Address Internal Risk Factors • Key Elements: ‒ Promote open communication, interactivity, and supportive atmosphere ‒ Offer professional development opportunities and employee assistance programs ‒ Make sure policies and protocols are fair, uniform, and prompt ‒ In the workplace, support employees with issues outside of the workplace

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REPORTING – WARNING SIGNS • Three Levels of Warning Signs:

1. Poor cooperation, antisocial comments and conduct, and negative communications 2. Actions designed to upset or scare others 3. Active intent to harm and acts of violence or aggression

• Be aware of common stressors • Be on the look out for early indicators (see next slide)

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REPORTING – EARLY WARNING SIGNS Potential Early Indicators • Sudden changes in demeanor • Changes in work habits, absenteeism, personal grooming issues • Disregard to work quality or company policy • Deterioration of workplace friendships, depression or withdrawal • Emotional responses to innocuous comments • Expressions of paranoia or persecution • Complaints against people or groups; chronic inability to “get along” with co-workers • Bullying or other aggressive behavior

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REPORTING – EARLY WARNING SIGNS Potential Early Indicators, continued

• Social media threats or outbursts; obsessive or irrational posts • Comments about suicide or wanting “to show someone” • Obsession with weapons • Comments about firearms in conjunction with violent crimes • Increased use of alcohol and drugs • Inability to get over minor setbacks or disputes at work • New and major personal life problems: divorce, illness, legal issues

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REPORTING – CREATE AN INTERNAL CULTURE THAT SUPPORTS IT • Clarity (who to talk to and how) • Ease of use ‒ Consider use of a hotline

• Anonymity and confidentiality • Fairness in process and outcome • Confidence that report will be taken seriously • No possibility of retaliation

• GOAL : Employees need to have confidence that their reports will be taken seriously, that their identities won't be divulged unnecessarily, and that leaders will take appropriate action.

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INVESTIGATIONS – BEST PRACTICES • Clear and complete documentation of investigation • Confidentiality throughout • Private interviews • Document collection and retention • Conclusive findings on the claims • Apply your policy uniformly • Action plans and discipline when necessary

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PLANNING FOR THE WORST AND RESPONDING TO VIOLENCE • Prepare your organization’s response plan based on your industry, your facility, and your workforce • Know your resources and make them readily available • Identify your “crisis management team” and their responsibilities • Provide training for major contingencies such as an active shooter • Review and update your procedure periodically

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PLANNING FOR THE WORST AND RESPONDING TO VIOLENCE Publicly Available Resources • National Institute for Occupational Safety and Health : https://www.cdc.gov/niosh/topics/violence/resources.html • Ready.gov: https://www.ready.gov/active-shooter  Run. Hide. Fight. : https://www.youtube.com/watch?v=5VcSwejU2D0&feature=player_embedded • Department of Homeland Security : https://www.dhs.gov/cisa/options-consideration-active-shooter-preparedness-video • Federal Emergency Management Agency : https://www.fema.gov/media-library-data/1523561958719- f1eff6bc841d56b7873e018f73a4e024/ActiveShooter_508.pdf • American Red Cross : https://www.readyrating.org/Resource-Center/Active-Shooter/category/active- shooter?utm_source=AnonOnPageLink&utm_medium=Link&utm_term=AnonUser&utm_content=ResourceLinks&utm_ campaign=AnonOnPageLink

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PLANNING FOR THE WORST AND RESPONDING TO VIOLENCE

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Next Labor & Employment Webinar

November 5, 6, 7 & 8

Questions?

CONTACTS

REBECCA L. BAKER Partner, Houston T: 1.713.221.1362 E: rebecca.baker@bracewell.com

CHRISTOPHER P. JAYNES Associate, Dallas T: 1.214.758.1641 E: christopher.jaynes@bracewell.com

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