Violence-prevention Strategies Limit Legal Liabilities

When an employee is attacked or killed on the job, it’s emotionally devastating. It also can be expensive. Not only does such an incident cause lost work time and lowered productivity, but depending on an employer’s actions before the violent act, it can result in multimillion-dollar legal settlements as well.

In 1990, for example, a California court ordered Equitable Life Assurance Society to pay $5 million to the families of two employees shot and killed in its offices by an employee’s husband. And in 1992, a jury awarded $5.5 million to the family of a woman stabbed to death at her job at Iron-horse Winery by a temporary worker.

These cases, and others like them, reinforce the fact that employers must take steps in preventing violence from erupting in their workplaces. The verdicts of the suits are based on a few legal theories: respondeat superior, negligent hiring and retention, and a duty to warn.

According to Philip Hyde, partner with the law firm Holzmann, Wise & Shepard in Palo Alto, California, respondeat superior is one of the foundations of employment law that holds principals (employers) liable for the actions of their agents (employees). In other words, if the employer knows-or should know-of information indicating that a person is a risk for committing violence, the employer is responsible for any violent acts that person commits.

Negligent hiring and retention is related to this principal. Says Hyde, because an employer has a duty dictated by the Occupational Safety and Health Act (OSHA) to maintain the health, safety and welfare of the workplace, if an employer knows, or should have known, of certain characteristics of an individual and hires the person or retains him or her in employment anyway, the employer is responsible for any harm the person causes.

In Holway vs. Snelling, for example, the case regarding a female winery worker who was stabbed to death by a temporary worker, the court concluded that the temporary firm that referred the employee failed to conduct a background check on the worker. If it had, it would have found that the man previously had been convicted and imprisoned for murder. Because this information was available, the company was liable for the man’s actions.

An employer also can be liable if it has information regarding a possible violent act and fails to warn the potential victim. For example, if a worker makes a threat against his or her supervisor to a human resources person-such as, “If I get another bad review I may just have to blow her away”-the HR person must let the supervisor know about the threat. “Not that the supervisor should change the review,” Hyde says. “But she would be prepared to deal with the problem and possibly intervene to avoid the situation.”

Also, if a company has information that leads it to believe violence may occur, it must take action. The 1990 case Tepel vs. Equitable Life Assurance Society, for example, concluded that the company was responsible for the death of two people and injuries of nine others because it had been told about threats the killer had made against his wife who was employed at the insurance company, but hadn’t beefed up security.

Employers can protect themselves against these types of legal suits by employing prevention strategies that include pre-screening and intervention. They must be cautious in doing so, however, because these actions carry their own liabilities.

Background checks and psychological testing, for example, must be job focused or run the risk of privacy invasion. “There is no hard-and-fast rule of where you draw the line between what’s relevant to the workplace vs. what’s personal and private conduct,” Hyde says. “The general framework I recommend is to keep inquiries focused on whether the information obtained will predict success in the job.”

Testing employees for violent tendencies also has implications based on the Americans with Disabilities Act (ADA). If a mental disorder that may cause violent behavior is discovered in an otherwise qualified person, the company may need to make accommodations for that person to perform the job he or she is seeking. However, Mary Russell, partner in the Labor and Employment Law Practice Group at the San Diego-based firm of Luce, Forward, Hamilton & Scripps, says that not all mental or emotional problems qualify under the ADA, and it’s difficult to accommodate someone with a propensity for violence. It’s even more difficult when the person acquires the ADA-protected condition during the course of employment, she says.

Hyde agrees. “Even if you do find out that a person who has made a threat is mentally disabled, if it looks like the person is going to carry out the threat, there’s no reasonable accommodation that can be made,” he says.

The bottom line is to balance the rights of potential perpetrators with those of potential victims, and to examine the consequences of investigating vs. taking your chances. “Sometimes you’re forced to make decisions knowing that there’s possible liability involved,” Russell says. “You want to do it in the safest way you can. You face greatest liability for failure to investigate.”