Employers have a legal duty to provide a safe workplace, and it makes good business sense to do so. An employee assaulted in the workplace may try to recover damages from the employer on the grounds an employer was negligent in hiring, supervising, or retaining an individual that the employer knew or should have known was unfit but hired and kept on the on job anyway. To prevent loss of life and injuries and to limit financial losses and potential liability, employers should institute policies and procedures to prevent violence from occurring in their workplaces by:
- identifying the potential for violence,
- establishing procedures to prevent the occurrence of violence, and
- instituting plans to respond to violence in the event prevention fails.
Background Checks and Screening Applicants
Although an employer should probe an applicant’s past behaviors during the interview process, it must be aware of potential legal pitfalls. The employer must walk a thin line between avoiding negligent hiring or retention claims from its employees or third parties and facing other potential claims such as defamation, discrimination or invasion of privacy by applicants.
- Resume Analysis and Reference Checks: At a minimum, employers should review resumes and applications. Employers should look for suspicious gaps in applicants’ employment history or contradictions on the application forms. Employers should also check references. Although follow-ups on references often do not provide much information (as applicants are unlikely to provide references who will cast them in a negative light), the important thing to do is ask about prior violent behavior. Even if an employer does not obtain usable information from the references or the applicant lies, the mere fact the employer asked the questions helps protect it from legal liability.
- Criminal Background Checks: Many private employers have begun to use criminal background checks to assess the applicant’s predisposition towards violence. A criminal background check may be necessary to discover violent behavior, as past employers may be reluctant to offer damaging information regarding a former employee due to the fear of a possible defamation suit. Moreover, conducting criminal background checks may bolster an employer’s defense to a negligent hiring claim since an employer can point to a clean criminal history record to support its contention that it had no way to know of this individual’s propensity for violence.
Using criminal background information, however, regarding applicants has been successfully challenged under federal and state anti-discrimination statutes as a pretext for discrimination. The EEOC, which enforces federal EEO laws, strongly recommends an employer state that disclosure of an applicant’s criminal record will not necessarily result in disqualification. Furthermore, an employer should not deny employment to an applicant merely because of a conviction, unless the conviction can be shown to be related to the job. Specifically, the EEOC maintains “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population . . . and is unlawful under Title VII in the absence of a justifying business necessity.”
Exempt from this rule are law enforcement agencies and state agencies, school districts, businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults.
It is also important to recognize state laws vary widely regarding whether, and to what extent, an employer may consider conviction or arrest records in hiring decisions.
- Signs of Potentially Undesirable Applicant: (1) gaps in employment; (2) inability to maintain a job; (3) unexplained reasons for leaving employment; and (4) abandonment of earlier career paths. Some suggested inquiries in the interview process to identify potentially violent applicants include: (1) how the applicant handled his or three most stressful events at work; (2) how the applicant relates to individuals in positions of authority; and (3) whether the applicant has ever been disciplined or discharged for violent conduct including fighting with, injuring, or harassing another while at work.
Zero-Tolerance Workplace Violence Policy
Reducing violence in the workplace starts with a strongly worded “nonaggression” policy. The policy should prohibit intimidation, threats, and violence and prohibit weapons from the workplace, even if the employees are licensed to carry weapons. It is important to recognize that some state laws prohibit an employer from prohibiting an employee from storing a properly registered firearm in his or her vehicle, regardless of whether the vehicle is parked on the employer’s premises. The policy should also remind employees that the employer has the right to search purses, lockers, desks and all areas on the employer’s premises. To avoid invasion of privacy claims, an employer should widely distribute this policy (e.g., in its handbook) and obtain the employees’ written acknowledgement and consent.
Grievance Procedure and Confidential Employee Hotline
The nonaggression policy should reference the complaint procedure so that employees subject to aggression know how to report such an incident. Furthermore, employers may consider the implementation of a confidential hotline so victims of workplace violence do not feel intimidated or fear retaliation when reporting an incident.
Handling Termination with Caution
Losing a job can be traumatic, even if the employee affected sees it coming. The key to an uneventful termination is planning. The worst termination mistake is surprise. Warn the employee in advance when their performance is unsatisfactory. If termination becomes necessary, keep the termination meeting brief, have at least two employer representatives present during the meeting and allow the departing employee to save face as much as possible by having security or other appropriate individuals discreetly escort the employee off the premises. Keys or other access devices should be immediately collected. Treating people fairly and with respect will diffuse the potential for termination violence in most instances. Security and management should, however, be on “high alert” following a termination since a number of violent outbursts occur shortly after an individual is discharged.
Training Supervisors to Recognize Employee’s “On the Edge”
History has shown that employees who commit workplace violence don’t typically just “snap.” Instead, they often exhibit warning signs over a period of time, that, if identified early enough, might have prevented the violent conduct. Some warning signs include: fascination with guns or weapons; drastic changes in behavior such as mood swings, outbursts; deterioration in job performance; substance abuse; being a loner; making veiled threats about wanting to harm supervisors or other employees that others might just interpret as “blowing off steam”; and excessive talk about serious personal, family or financial issues such as divorce or death of a close family member or friend.