Introduction

Workplace violence is not limited to homicides and physical assaults. It also includes more subtle behaviors such as stalking, threatening words or conduct, harassment, and similarly menacing conduct. Together these forms of physical and nonphysical violence victimize approximately more than 25 million people a year. Such high levels of violence result in a major decline in employee morale, management efficiency, and productivity, as well as significant costs in lost wages, higher benefits payments, and greater use of sick leave.

Workplace violence also affects nonemployees in the workplace during a violent incident and creates a variety of liabilities for employers. A single violent incident may result not only in the death or in injury of employees or bystanders, but also in huge economic costs in the form of medical and psychiatric care, liability lawsuits, lost business and productivity, repairs or cleanup of a damaged worksite, and higher insurance rates.

Workers’ Compensation

Employees injured as a result of workplace violence might have claims for workers’ compensation. To be eligible for workers’ compensation an employee must have been injured in the course of or out of employment.

Although employers may try to reduce their liability for workplace violence by claiming workers’ compensation as the exclusive remedy or means of recovery for any injuries, the conduct causing the injury must meet the following requirements or the exclusive coverage of workers’ compensation will not be available:

  • The injury arises out of employment.
  • The injury arises in the course of employment.
  • The injury is not caused by an act against the victim personally or for personal reasons. Rather, it is directed at the employee as an employee or because of the employment.

Antidiscrimination Laws

Title VII of the Civil Rights Act, as well as most state antidiscrimination laws, prohibits harassment based on protected classes such as race, color, creed, religion, sex, national origin, age, or disability. Aggression or violence against coworkers based on one of these protected areas is considered a form of harassment. Such behavior can lead to liability for employers that fail to prevent or attempt to prevent harassment in the workplace.

Employers must safeguard their assets from workplace violence and safeguard employees from potentially dangerous sexual advances. Both the employer and the employee committing the crime may face serious consequences if a sexual harassment lawsuit is successful. To assist in preventing sexual harassment in the workplace, employers should provide employees with a written policy prohibiting sexual harassment and discrimination in the workplace. An efficient written policy may contain the following information:

  • A definition of sexual harassment from both state and federal law sources; including descriptions and examples of impermissible behavior.
  • The details of the illegalities of sexual harassment.
  • A clear and concise statement of zero tolerance in regard to sexual harassment and the ramifications of sexual harassment.
  • Details regarding an internal complaint process encouraging employees to bring issues of sexual harassment to the attention of management, emphasizing confidentiality and trust. For example, employees bringing sexual harassment complaints will not endure any form of retaliation or discrimination.
  • Legal remedies and complaint process available through state or federal agencies.
  • How an employee may contact both an internal and external entity in regard to harassment.

Upon establishment of a complaint procedure, employers must train all managers and supervisors in the operations of the procedure and encourage employees to implement the complaint procedure when appropriate. Employers must also take appropriate remedial action to end any incident of sexual harassment, for example, employers may:

  • Institute a resolution process.
  • Discipline the harasser.
  • Provide counseling for the victim and assailant, where appropriate. For example, the harasser’s continued employment is made contingent upon attending counseling.

Restricting Employers’ Access to Information

FEDERAL PROTECTION OF POTENTIALLY VIOLENT APPLICANTS AND EMPLOYEES

Employers attempting to identify potentially violent employees and applicants must consider federal legislation that protects individuals. An employer that screens out a disproportionate number of a protected class of individuals, through the use of arrest records, may be held liable for discrimination because of the disparate impact of the screening on the protected class of persons. Thus, the employer making use of such records should have a clear and articulated justification for doing so and should be careful to treat all persons with arrest records in a consistent manner.

Exclusion of an applicant with an arrest record is justified only where it appears the applicant in fact engaged in the conduct for which the applicant was arrested, such conduct is job related, and was relatively recent. Because a person convicted of a crime has been found to have committed the wrongful act beyond a reasonable doubt, the employer need only consider whether the crime occurred recently and whether it is related to the job duties.

Another federal protection is the Employee Polygraph Protection Act of 1988 (EPPA). According to the EPPA, employers are generally prohibited from requiring or requesting employees or applicants to take lie-detector tests, and from discharging, disciplining, or discriminating against an employee or applicant for refusal to take a test or exercising other rights under the EPPA. However, private employers may conduct polygraph testing of employees and applicants of security firms (such as armored car, alarm, and guard) and pharmaceutical manufacturers, distributors, and dispensers. The EPPA also permits private employers to test employees that are reasonable suspected to be involved in a workplace incident (such as theft or embezzlement) resulting in economic loss to the employer.

The use of medical or psychological examinations on employees or applicants is limited by the American with Disabilities Act (ADA), which covers individuals with a physical or mental impairment that substantially limits one or more major life activities, who have a record of such impairment, or individuals with a record of such an impairment, or who are regarded as having such impairment.

The federal Electronic Communications Privacy Act (ECPA) prohibits interception of wire, oral, or electronic communications by employees. Prohibited interception covered by the ECPA includes live monitoring and recording of telephone conversations and monitoring of voice mail and email messages, with the following exceptions:

  • Where the employee has consented to monitoring.
  • Pursuant to the business extension exception and where the monitoring is done in the ordinary course of business is permissible and the subject matter of the intercepted communication is one in which the employer has a legal interest. For example, employers engaged in telemarketing may monitor employee telephone conversations with customers for quality control purposes.

Additionally, employers that are party to certain government contracts may not disclose medical information about employees except in limited circumstances. Under the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), covered employees may disclose medical information as follows:

  • Only where supervisors have a need to know because of possible work restrictions or accommodations.
  • Where safety and first aid personnel would need such information for emergency treatment.
  • Where government personnel administering the statute request such information.

STATE LAW ISSUES

Employers attempting to identify potentially violent employees and applicants must also consider state law restrictions such as drug-testing statutes, potential claims for defamation, and claims for invasion of privacy.

States also have their own polygraph and similar restrictions as well as their own fair employment acts covering individuals with disabilities. Many states have restrictions on when, where, and how an employer may test an applicant and/or an employee for drugs. These statutes must be reviewed in conjunction with an employer’s hiring and recruitment activities.

Employees and applicants also have common-law protections. To prove a claim for defamation, the employee must prove a public disclosure by the employer of a false statement of fact that the employer knows to be false or in reckless disregard of truth. A claim for invasion of privacy requires a public disclosure of private facts that would be objectionable to a reasonable person of ordinary sensibilities.

Note: Employers must consider the possibility of receiving such claims by employees and/or applicants and must limit the information regarding these individuals released to the public and within the organization itself.