How to Minimize Violence in Your Workplace

Editor's Note: At press time, the media was full of a story of uncontrolled violence among rival biker gangs. Their chosen battleground was a Twin Peaks restaurant in Waco, TX. At the time of this writing, the franchisee had had its license revoked by the franchisor, as punishment for allowing an atmosphere in which the violence could occur. This threat, unfortunately, will not go away.

I am a management safety and health lawyer. For the first 30 years of my practice, I provided counsel to employers in hundreds of cases involving serious injuries. Twenty-four of those cases involved fatalities. None involved workplace violence. In the last five years, however, clients have increasingly sought my assistance with employee-on-employee violence issues.

Background

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) asserts that there are nearly 2 million victims of workplace violence each year. Rates differ significantly by gender, with homicide accounting for 22% of female workplace fatalities compared with 8% of male fatalities. As unsettling as that news is on its own, a 2012 survey conducted by the Society for Human Resource Management indicated that workplace violence also is putting companies' viability at risk by affecting workplace productivity and adversely affecting company financials.

Employers are beginning to realize that the violence isn't occurring solely on movie screens anymore, but also in unlikely places of business across the United States. As a result, employers are asking the obvious next question: “What can I do to protect my company and my employees?”

Nine Steps

Like workplace accidents involving machinery, injuries from workplace violence can be avoided (or at least severely limited) if some proactive measures are taken. The nine steps I've listed below are critical components of a successful workplace violence prevention program.

1. Create and Implement a Workplace Violence Policy. An effective policy must be in writing, distributed to all employees and clearly articulate zero tolerance. Policies should be customized to each company and, in some instances, between facilities of the same company. This list of behaviors, while not exhaustive, provides examples of conduct that should be prohibited:

'

• Physically injuring another person.
• Threatening someone.
• Behaving in an aggressive or hostile way that creates a reasonable fear of injury or subjects a person to emotional distress.
• Intentionally damaging employer property or the property of another.
• Possessing a weapon, concealed or otherwise, while on company property or while on company business.
• Committing acts motivated by, or related to, sexual harassment or domestic violence.

'

2. Ban Guns and Other Weapons. Publishing a policy that prohibits guns in the workplace is critically important, but in most states, more will be needed. Signage will be necessary at building entrances. Some states even dictate the size of the signs and the letters on the signs. With the proper permits, some states allow residents to keep firearms in their vehicles, even while at work. Establishing an effective ban on guns, therefore, will require state-by-state research for companies with facilities in multiple states.

3. Anticipate Potential Violence at Your Company. The nature of your business will dictate risk factors as much as the composition of the workforce. Here are examples of areas to consider:

'

• Does your facility have a history of tolerating horseplay, employee arguments or bullying (which may escalate to violence)?
• Has violence previously occurred at your facility (and if so, what can you do now to prevent it)?
• Do some employees display erratic behavior?
• Do your employees occasionally have to deal with angry customers?
• What is your process for escorting discharged employees out of the building?
• Do ex-employees sometimes return to settle a score or just vent?
• Do ex-spouses or ex-boyfriends/girlfriends sometimes stalk employees at or near your property?
• Is your company in a dangerous neighborhood?

'

4. Add Legs to Your Policies. The best policies in the world will be ineffective without a violence response team and a reporting system. Effective teams have members from the main departments or working areas of the facility. This is a team with connections to every supervisor (the importance of which is discussed below). They must be recruited with a view toward rapidly responding to potentially violent situations. Two reporting mechanisms should be considered ' one for anonymous reporting of actual and potential violence, the other for rapid reporting within the response team to one individual “in charge,” who has the power to investigate situations and remove employees from the facility. Anonymous complaints should be reviewed daily and action should be taken immediately.

5. Roll Out the Policy Like You Mean It. Since it is important that employees understand their company's firm stance against workplace violence, a powerful person in the company should announce the Workplace Violence Policy (and the anonymous complaint process). The CEO is better than the president, who is better than the EVP, who is better than the plant manager, who is better than the HR director when it comes to rolling out this policy.

6. Assess Outside Resources. If your business is located in a crime-riddled neighborhood, consider hiring security guards or an outside security force. At the very least, develop a relationship with local law enforcement (although it is nearly impossible for police to arrive between the time of the call and the end of the violence). Other precautions may include:

'

• Security cameras (inside and outside)
• Alarm systems.
• Metal detectors at entrances.
• Access badges to all or most inner doorways and stairwells.
• A lock-down plan.

'

7. Train All Supervisors. Two employees in a recently publicized incident had been bickering at work for weeks. Two supervisors were aware of the situation, but they both failed to address it until violence erupted. Employers must ensure supervisors' buy-in on the company's program, and supervisors must receive formal training that informs them of their responsibilities. They are the eyes and ears of every facility and provide the first line of detection when arguments begin or hard feelings develop between co-workers. Training should include the following:

'

• Sharing statistics on workplace violence.
• Explaining potential liability following violence.
• Introducing the response team (and its leader).
• Discussing the early warning signs of potentially violent situations.
• Requiring immediate reporting of potential threatening situations.
• Describing the action plan for responding to threats.

'

8. Make Wise Hiring Decisions. Ask new hires to sign an authorization allowing a criminal background check. This is not as simple as it may sound. The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 warning of possible enforcement action against employers' use of criminal background checks, under certain circumstances. The EEOC contends that the use of conviction records to deny employment may be illegal if it is not relevant to the applicable job duties and has a disparate impact upon protected classes. But the agency has not been very successful in its enforcement actions under the 2012 guidance.

Additionally, 12 states and 70 municipalities restrict inquiries into an applicant's criminal convictions, making it even more difficult for employers to make informed hiring decisions. The concept, known as “ban the box,” involves restrictions on application questions directed at criminal records, and is gaining momentum across the country. In most instances, employers may run criminal background checks on applicants or otherwise inquire into their criminal history, but only in latter stages of the application process. In many instances, those questions may only be asked after a job offer has been extended and accepted. There are usually exemptions to “ban the box” restrictions, but they are limited (e.g., child-care facilities and industries where binding or licensing is required).

9. Establish a Plan to Manage Threats. Have your plan ready and operative.

• Who will analyze the threat?
• When possible, conduct an immediate investigation.
• Be decisive, conservative and immediate on suspensions and leaves of absence.
• Determine how to manage actual violence in advance.
• Have an immediate response system in place to contact security or law enforcement, when needed.

Conclusion

While implementing the above steps will take time and cost money, employers are far better off working to prevent harmful situations on the front end than they would be handling dangerous incidents on the back end.

Brad S. Hiles is a partner with Husch Blackwell. He can be reached at [email protected]. This article also appeared in Corporate Counsel, an ALM sister publication of this newsletter.

Editor's Note: At press time, the media was full of a story of uncontrolled violence among rival biker gangs. Their chosen battleground was a Twin Peaks restaurant in Waco, TX. At the time of this writing, the franchisee had had its license revoked by the franchisor, as punishment for allowing an atmosphere in which the violence could occur. This threat, unfortunately, will not go away.

I am a management safety and health lawyer. For the first 30 years of my practice, I provided counsel to employers in hundreds of cases involving serious injuries. Twenty-four of those cases involved fatalities. None involved workplace violence. In the last five years, however, clients have increasingly sought my assistance with employee-on-employee violence issues.

Background

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) asserts that there are nearly 2 million victims of workplace violence each year. Rates differ significantly by gender, with homicide accounting for 22% of female workplace fatalities compared with 8% of male fatalities. As unsettling as that news is on its own, a 2012 survey conducted by the Society for Human Resource Management indicated that workplace violence also is putting companies' viability at risk by affecting workplace productivity and adversely affecting company financials.

Employers are beginning to realize that the violence isn't occurring solely on movie screens anymore, but also in unlikely places of business across the United States. As a result, employers are asking the obvious next question: “What can I do to protect my company and my employees?”

Nine Steps

Like workplace accidents involving machinery, injuries from workplace violence can be avoided (or at least severely limited) if some proactive measures are taken. The nine steps I've listed below are critical components of a successful workplace violence prevention program.

1. Create and Implement a Workplace Violence Policy. An effective policy must be in writing, distributed to all employees and clearly articulate zero tolerance. Policies should be customized to each company and, in some instances, between facilities of the same company. This list of behaviors, while not exhaustive, provides examples of conduct that should be prohibited:

'

• Physically injuring another person.
• Threatening someone.
• Behaving in an aggressive or hostile way that creates a reasonable fear of injury or subjects a person to emotional distress.
• Intentionally damaging employer property or the property of another.
• Possessing a weapon, concealed or otherwise, while on company property or while on company business.
• Committing acts motivated by, or related to, sexual harassment or domestic violence.

'

2. Ban Guns and Other Weapons. Publishing a policy that prohibits guns in the workplace is critically important, but in most states, more will be needed. Signage will be necessary at building entrances. Some states even dictate the size of the signs and the letters on the signs. With the proper permits, some states allow residents to keep firearms in their vehicles, even while at work. Establishing an effective ban on guns, therefore, will require state-by-state research for companies with facilities in multiple states.

3. Anticipate Potential Violence at Your Company. The nature of your business will dictate risk factors as much as the composition of the workforce. Here are examples of areas to consider:

'

• Does your facility have a history of tolerating horseplay, employee arguments or bullying (which may escalate to violence)?
• Has violence previously occurred at your facility (and if so, what can you do now to prevent it)?
• Do some employees display erratic behavior?
• Do your employees occasionally have to deal with angry customers?
• What is your process for escorting discharged employees out of the building?
• Do ex-employees sometimes return to settle a score or just vent?
• Do ex-spouses or ex-boyfriends/girlfriends sometimes stalk employees at or near your property?
• Is your company in a dangerous neighborhood?

'

4. Add Legs to Your Policies. The best policies in the world will be ineffective without a violence response team and a reporting system. Effective teams have members from the main departments or working areas of the facility. This is a team with connections to every supervisor (the importance of which is discussed below). They must be recruited with a view toward rapidly responding to potentially violent situations. Two reporting mechanisms should be considered ' one for anonymous reporting of actual and potential violence, the other for rapid reporting within the response team to one individual “in charge,” who has the power to investigate situations and remove employees from the facility. Anonymous complaints should be reviewed daily and action should be taken immediately.

5. Roll Out the Policy Like You Mean It. Since it is important that employees understand their company's firm stance against workplace violence, a powerful person in the company should announce the Workplace Violence Policy (and the anonymous complaint process). The CEO is better than the president, who is better than the EVP, who is better than the plant manager, who is better than the HR director when it comes to rolling out this policy.

6. Assess Outside Resources. If your business is located in a crime-riddled neighborhood, consider hiring security guards or an outside security force. At the very least, develop a relationship with local law enforcement (although it is nearly impossible for police to arrive between the time of the call and the end of the violence). Other precautions may include:

'

• Security cameras (inside and outside)
• Alarm systems.
• Metal detectors at entrances.
• Access badges to all or most inner doorways and stairwells.
• A lock-down plan.

'

7. Train All Supervisors. Two employees in a recently publicized incident had been bickering at work for weeks. Two supervisors were aware of the situation, but they both failed to address it until violence erupted. Employers must ensure supervisors' buy-in on the company's program, and supervisors must receive formal training that informs them of their responsibilities. They are the eyes and ears of every facility and provide the first line of detection when arguments begin or hard feelings develop between co-workers. Training should include the following:

'

• Sharing statistics on workplace violence.
• Explaining potential liability following violence.
• Introducing the response team (and its leader).
• Discussing the early warning signs of potentially violent situations.
• Requiring immediate reporting of potential threatening situations.
• Describing the action plan for responding to threats.

'

8. Make Wise Hiring Decisions. Ask new hires to sign an authorization allowing a criminal background check. This is not as simple as it may sound. The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 warning of possible enforcement action against employers' use of criminal background checks, under certain circumstances. The EEOC contends that the use of conviction records to deny employment may be illegal if it is not relevant to the applicable job duties and has a disparate impact upon protected classes. But the agency has not been very successful in its enforcement actions under the 2012 guidance.

Additionally, 12 states and 70 municipalities restrict inquiries into an applicant's criminal convictions, making it even more difficult for employers to make informed hiring decisions. The concept, known as “ban the box,” involves restrictions on application questions directed at criminal records, and is gaining momentum across the country. In most instances, employers may run criminal background checks on applicants or otherwise inquire into their criminal history, but only in latter stages of the application process. In many instances, those questions may only be asked after a job offer has been extended and accepted. There are usually exemptions to “ban the box” restrictions, but they are limited (e.g., child-care facilities and industries where binding or licensing is required).

9. Establish a Plan to Manage Threats. Have your plan ready and operative.

• Who will analyze the threat?
• When possible, conduct an immediate investigation.
• Be decisive, conservative and immediate on suspensions and leaves of absence.
• Determine how to manage actual violence in advance.
• Have an immediate response system in place to contact security or law enforcement, when needed.

Conclusion

While implementing the above steps will take time and cost money, employers are far better off working to prevent harmful situations on the front end than they would be handling dangerous incidents on the back end.

Brad S. Hiles is a partner with Husch Blackwell. He can be reached at [email protected]. This article also appeared in Corporate Counsel, an ALM sister publication of this newsletter.