Disaster Planning May Reduce Workplace Violence Liability

In the aftermath of these horrific events, questions and concerns naturally arise among managers, employees and even families about the possibility and potential prevention within our own communities
and workplaces.

“Those are natural concerns,” said Dr. Vivian Marinelli, Senior Director of Crisis Management for FEI Behavioral Health. “After such horrific events, we all feel compelled to consider the safety of our own homes and workplaces.”

The real question, though, especially for in-house lawyers and other corporate policymakers, is “What could have been done to prevent it?” Is there a way to develop policies and plans that might mitigate violence? Or, at least provide a warning?

Warning Signs

Past experience has shown that highly tragic incidences are not spur-of-the-moment occurrences. Often, the shooter has calculated his actions and developed a plan. In hindsight, there are patterns that become much easier to identify after the tragedy has occurred. Many of the recent workplace violence issues involved a disgruntled employee. Some triggers to look for in such a person are:

• Recent firing from the job;
• Unexcused and frequent absences;
• Depression or anger;
• Resistance to changes or procedures; and
• Noticeable change in demeanor or behavior.

Steps for Prevention

Employers have a duty to exercise reasonable care to protect employees against violent acts. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. Often, we think of the Occupational Safety and Health Administration (OSHA) as an agency to protect workers in factories, manufacturing and construction industries. While true, workplace violence also falls under the OSH Act. Under the General Duty Clause of the OSH Act, every employer “shall 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.”

Legal counsel can advise employers how to comply with the Act and also assist with the steps to reduce the risk of liability of a violent employee. Here are some suggested steps:

• Conduct pre-employment background checks on every new hire.
• Ask for references and follow through with them.
• If the background check has you feeling suspicious, take the next step and conduct a criminal record check.
• If you know the person has a history of violence, don't hire him or her.
• Document all disciplinary actions.
• Have a written plan in place with discipline and action to be taken for disruptive behavior and follow through each and every time.
• Use annual reviews as a method of discussing performance and expectations. Often, these are the only times that managers get a feel for what's happening with an employee.'
• Make other opportunities to observe and speak with employees, such as weekly/monthly staff meetings, all-employee functions, etc.
• Provide assistance through a company-sponsored Employee Assistance Program (EAP). A comprehensive EAP should provide counseling referrals for drug and alcohol abuse, marriage or family counseling, financial counseling, gambling addiction, and stress management. Also, an EAP can provide management consultations to walk managers through a difficult employee situation.
• Adopt a zero-tolerance policy for violent behavior.
• Document all concerns raised by coworkers, and take action.
• Create a termination process. When an employee is fired or quits, immediately disable his computer, security pass and anything that would give him open access to the company.
• Take all concerns seriously. Establish a Threat Assessment Team whose responsibility is to review each and every threat made to an employee or supervisor. Under the OSH Act, if an employer has reason to know of possible workplace violence ( e.g., threats, intimidation) but does nothing to protect its employees, OSHA may impose civil fines and penalties of $5,000-20,000 per violation, depending upon the seriousness.
• Document all threats.
• Analyze the workplace and identify particular areas of risk. Is your reception area safe? Is there adequate lighting in your parking lot? If you don't already have one in place, install a security system in your office to ensure that the workplace is safe from outsiders.
• Employee break rooms should be accessed via a keypad or PIN number if possible.'
• Based on your state laws, it would be wise to post or include in your employee handbook your company policy on handguns and weapons on company property.

Employers should consult with their legal counsel to determine if the above steps are adequate to protect their company from liability.

Training

Training and counseling programs are some of the best ways to prevent workplace violence. Employers can work with in-house counsel to write policies designed to assist troubled employees. Consider policies that:

• Allow time off for the employee to make doctor and counselor appointments.
• Transfer an employee away from a potential threat from another employee.
• Make training programs competency-based so that employees understand policies and behavioral expectations, as well as consequences of behavior.

Create a Crisis Plan

Perhaps the best policy lawyers can suggest is the development of a crisis or disaster plan.'

“A crisis plan supports a company's liability position,” says attorney Christine Liu McLaughlin from the Milwaukee, WI-based office of Godfrey & Kahn, S.C. “Keeping your employees safe and secure is of critical importance. There are legal and practical options that should be vetted ahead of time so you are prepared to act. Failure to act swiftly and effectively can lead to legal consequences, as well as negative after-effects on the workplace.”

It is important to note that preparation for crisis events, while no guarantee of prevention, can help limit the scope of the crisis as well as speed recovery, and it can reduce the cost of recovery, or potential lawsuits. For the business environment, this is crucial to the return of productivity.

“These events may appear to be random and chaotic,” says FEI's Marinelli, “But for those involved, particularly when violent acts occur in the workplace, there is always a 'before, during and after.' We have to approach crisis at work in this context, as something we prepare for, manage as it occurs and address after the event.”

When creating a crisis plan, it is important for in-house lawyers to consider the full impact of policies, not just before a crisis, but during and after as well. A good disaster plan will have a counseling component to it. The after-effects of a violent event at work can last for years, and if not addressed, have an enormously negative impact on the individuals, organization or community and leave the company open for potential legal ramifications.

Begin your crisis plan by conducting a proactive assessment of your company's risk areas to map the most appropriate prevention and response measures. This exercise should take into account multiple types of crises, including workplace violence, crime, natural disasters, infrastructure failure, and mass events such as terrorism.

During your assessment, you should:

• Establish detailed audits of your company's physical locations and their inherent risks ' an office building in California, for example, is more prone to earthquakes than one in the Midwest. Or evaluate how many egress points are available for individuals to evacuate a building if necessary.
• Categorize employee roles and responsibilities with regard to risks they face ' a cashier, receptionist or other front-line employee will face different risks than an employee working in the stockroom or back office.
• Consider the impact of social media ' sites like Twitter and Facebook not only offer a platform for organizing crowd actions, they also provide insights on how a situation might morph and develop. It's important to take this into account when analyzing your company's risk.

Address the Risks

Once you have a better understanding of the risks, draft a formal crisis plan that details your specific response, as well as appropriate resources and roles for each staff position. The plan should incorporate step-by-step violence response protocols. This becomes your blueprint for action during a crisis and, as simple as it sounds, it's always comforting to have a written plan amid chaos.

Practice the Plan

Your preparation efforts shouldn't end with plan development. One of the most important steps in crisis management is regular training. In our experience, the best preparation must occur at the enterprise level. You can't just graft on a security approach and expect it to work. All your employees and on-site vendors must be familiar with your plan. This does not mean simply reviewing a piece of paper, but practicing through load testing, exercises and drills.

Employees need to be made aware of what they are expected to do when an individual become physical or when weapons are involved, for example. These procedures need to be simple and specific:

• Disengage from the violent individual.
• Keep yourself safe ' leave the area.
• Call police and seek help immediately.

We've found that most violent incidents follow typical patterns of escalation. Being aware of these patterns can help reduce natural panic when a facing a real-life situation. We often compare this to fire drills ' you become familiar with what to do when there is no fire, so you can respond via muscle memory if a fire occurs.

What if a Crisis DOES Occur?

After enacting your crisis plan, it's important to implement post-incident assistance programs that provide support and counseling for those affected. Remember, crisis events occur within communities and the long-term effects, like ripples in a pond, may continue to emerge for weeks or months. Ongoing stress counseling for employees or customers can be one of most essential aspects of a comprehensive crisis management plan.

Legal counsel should advise business clients to do whatever they can to recognize workplace violence and do what's necessary to prevent it. Through thoughtful, diligent preparation in developing safety measures and a crisis plan, your clients can offer their employees and customers a safer environment in light of potential crises. These steps will help minimize liability and provide a safe work environment for all employees.

Terri Howard, Sr. Director at FEI Behavioral Health, is responsible for working with corporate clients to ensure companies are prepared for, can respond to and recover from, a crisis incident. She also coordinates the people support and psychological first-aid services for those impacted by the incident, and helps develop drills and exercises aimed at testing current plans and procedures.

'

The concept of workplace violence is not new, but it has experienced a recent increase in awareness due, in part, to the string of incidents that have occurred since the Aurora, CO, movie theater shooting last July. Shortly after that tragedy, the Sikh Temple shooting occurred in Oak Creek, WI, followed by a grocery store shooting in New Jersey, then a shooting outside a workplace near the Empire State Building in New York City and the Minneapolis sign shop shooting. After a short lull, another shooting occurred in the workplace as a result of domestic violence, this time at a salon and day spa in Brookfield, WI.

More Than Just a Concept

Unfortunately, the list of workplace shootings continues to grow. Social networking and the media helped turn these events into national headlines. But on a day-to-day basis, many incidents of workplace violence occur, and while they don't make the national news, their impact is still devastating for all those involved.

In the aftermath of these horrific events, questions and concerns naturally arise among managers, employees and even families about the possibility and potential prevention within our own communities
and workplaces.

“Those are natural concerns,” said Dr. Vivian Marinelli, Senior Director of Crisis Management for FEI Behavioral Health. “After such horrific events, we all feel compelled to consider the safety of our own homes and workplaces.”

The real question, though, especially for in-house lawyers and other corporate policymakers, is “What could have been done to prevent it?” Is there a way to develop policies and plans that might mitigate violence? Or, at least provide a warning?

Warning Signs

Past experience has shown that highly tragic incidences are not spur-of-the-moment occurrences. Often, the shooter has calculated his actions and developed a plan. In hindsight, there are patterns that become much easier to identify after the tragedy has occurred. Many of the recent workplace violence issues involved a disgruntled employee. Some triggers to look for in such a person are:

• Recent firing from the job;
• Unexcused and frequent absences;
• Depression or anger;
• Resistance to changes or procedures; and
• Noticeable change in demeanor or behavior.

Steps for Prevention

Employers have a duty to exercise reasonable care to protect employees against violent acts. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. Often, we think of the Occupational Safety and Health Administration (OSHA) as an agency to protect workers in factories, manufacturing and construction industries. While true, workplace violence also falls under the OSH Act. Under the General Duty Clause of the OSH Act, every employer “shall 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.”

Legal counsel can advise employers how to comply with the Act and also assist with the steps to reduce the risk of liability of a violent employee. Here are some suggested steps:

• Conduct pre-employment background checks on every new hire.
• Ask for references and follow through with them.
• If the background check has you feeling suspicious, take the next step and conduct a criminal record check.
• If you know the person has a history of violence, don't hire him or her.
• Document all disciplinary actions.
• Have a written plan in place with discipline and action to be taken for disruptive behavior and follow through each and every time.
• Use annual reviews as a method of discussing performance and expectations. Often, these are the only times that managers get a feel for what's happening with an employee.'
• Make other opportunities to observe and speak with employees, such as weekly/monthly staff meetings, all-employee functions, etc.
• Provide assistance through a company-sponsored Employee Assistance Program (EAP). A comprehensive EAP should provide counseling referrals for drug and alcohol abuse, marriage or family counseling, financial counseling, gambling addiction, and stress management. Also, an EAP can provide management consultations to walk managers through a difficult employee situation.
• Adopt a zero-tolerance policy for violent behavior.
• Document all concerns raised by coworkers, and take action.
• Create a termination process. When an employee is fired or quits, immediately disable his computer, security pass and anything that would give him open access to the company.
• Take all concerns seriously. Establish a Threat Assessment Team whose responsibility is to review each and every threat made to an employee or supervisor. Under the OSH Act, if an employer has reason to know of possible workplace violence ( e.g., threats, intimidation) but does nothing to protect its employees, OSHA may impose civil fines and penalties of $5,000-20,000 per violation, depending upon the seriousness.
• Document all threats.
• Analyze the workplace and identify particular areas of risk. Is your reception area safe? Is there adequate lighting in your parking lot? If you don't already have one in place, install a security system in your office to ensure that the workplace is safe from outsiders.
• Employee break rooms should be accessed via a keypad or PIN number if possible.'
• Based on your state laws, it would be wise to post or include in your employee handbook your company policy on handguns and weapons on company property.

Employers should consult with their legal counsel to determine if the above steps are adequate to protect their company from liability.

Training

Training and counseling programs are some of the best ways to prevent workplace violence. Employers can work with in-house counsel to write policies designed to assist troubled employees. Consider policies that:

• Allow time off for the employee to make doctor and counselor appointments.
• Transfer an employee away from a potential threat from another employee.
• Make training programs competency-based so that employees understand policies and behavioral expectations, as well as consequences of behavior.

Create a Crisis Plan

Perhaps the best policy lawyers can suggest is the development of a crisis or disaster plan.'

“A crisis plan supports a company's liability position,” says attorney Christine Liu McLaughlin from the Milwaukee, WI-based office of Godfrey & Kahn, S.C. “Keeping your employees safe and secure is of critical importance. There are legal and practical options that should be vetted ahead of time so you are prepared to act. Failure to act swiftly and effectively can lead to legal consequences, as well as negative after-effects on the workplace.”

It is important to note that preparation for crisis events, while no guarantee of prevention, can help limit the scope of the crisis as well as speed recovery, and it can reduce the cost of recovery, or potential lawsuits. For the business environment, this is crucial to the return of productivity.

“These events may appear to be random and chaotic,” says FEI's Marinelli, “But for those involved, particularly when violent acts occur in the workplace, there is always a 'before, during and after.' We have to approach crisis at work in this context, as something we prepare for, manage as it occurs and address after the event.”

When creating a crisis plan, it is important for in-house lawyers to consider the full impact of policies, not just before a crisis, but during and after as well. A good disaster plan will have a counseling component to it. The after-effects of a violent event at work can last for years, and if not addressed, have an enormously negative impact on the individuals, organization or community and leave the company open for potential legal ramifications.

Begin your crisis plan by conducting a proactive assessment of your company's risk areas to map the most appropriate prevention and response measures. This exercise should take into account multiple types of crises, including workplace violence, crime, natural disasters, infrastructure failure, and mass events such as terrorism.

During your assessment, you should:

• Establish detailed audits of your company's physical locations and their inherent risks ' an office building in California, for example, is more prone to earthquakes than one in the Midwest. Or evaluate how many egress points are available for individuals to evacuate a building if necessary.
• Categorize employee roles and responsibilities with regard to risks they face ' a cashier, receptionist or other front-line employee will face different risks than an employee working in the stockroom or back office.
• Consider the impact of social media ' sites like Twitter and Facebook not only offer a platform for organizing crowd actions, they also provide insights on how a situation might morph and develop. It's important to take this into account when analyzing your company's risk.

Address the Risks

Once you have a better understanding of the risks, draft a formal crisis plan that details your specific response, as well as appropriate resources and roles for each staff position. The plan should incorporate step-by-step violence response protocols. This becomes your blueprint for action during a crisis and, as simple as it sounds, it's always comforting to have a written plan amid chaos.

Practice the Plan

Your preparation efforts shouldn't end with plan development. One of the most important steps in crisis management is regular training. In our experience, the best preparation must occur at the enterprise level. You can't just graft on a security approach and expect it to work. All your employees and on-site vendors must be familiar with your plan. This does not mean simply reviewing a piece of paper, but practicing through load testing, exercises and drills.

Employees need to be made aware of what they are expected to do when an individual become physical or when weapons are involved, for example. These procedures need to be simple and specific:

• Disengage from the violent individual.
• Keep yourself safe ' leave the area.
• Call police and seek help immediately.

We've found that most violent incidents follow typical patterns of escalation. Being aware of these patterns can help reduce natural panic when a facing a real-life situation. We often compare this to fire drills ' you become familiar with what to do when there is no fire, so you can respond via muscle memory if a fire occurs.

What if a Crisis DOES Occur?

After enacting your crisis plan, it's important to implement post-incident assistance programs that provide support and counseling for those affected. Remember, crisis events occur within communities and the long-term effects, like ripples in a pond, may continue to emerge for weeks or months. Ongoing stress counseling for employees or customers can be one of most essential aspects of a comprehensive crisis management plan.

Legal counsel should advise business clients to do whatever they can to recognize workplace violence and do what's necessary to prevent it. Through thoughtful, diligent preparation in developing safety measures and a crisis plan, your clients can offer their employees and customers a safer environment in light of potential crises. These steps will help minimize liability and provide a safe work environment for all employees.

Terri Howard, Sr. Director at FEI Behavioral Health, is responsible for working with corporate clients to ensure companies are prepared for, can respond to and recover from, a crisis incident. She also coordinates the people support and psychological first-aid services for those impacted by the incident, and helps develop drills and exercises aimed at testing current plans and procedures.

'