Unfortunately, all we have to do to understand the prevalence of workplace violence in the U.S. is watch the evening news. According to the Federal Bureau of Investigation (FBI), over two million workers become workplace violence victims each year – ranging from verbal bullying to homicide – with the vast majority of incidents being unreported either out of embarrassment, fear of retaliation, or simply because the employees do not know they should report an incident.
Organizations need to consider addressing this issue through training. I had the opportunity to chat with Todd Wulffson, managing partner at Carothers DiSante & Freudenberger LLP, based in California. Wulffson has been focused on counseling and defending businesses in labor and employment matters for over 25 years. Prior to joining CDF, Wulffson served as general counsel and SVP of HR at Palace Entertainment, overseeing the SEC filings, legal and human resources issues for a company with over 12,000 employees at 40 locations in 11 states.
Please remember that Todd’s comments should not be construed as legal advice or pertaining to any specific factual situations. If you have specific detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Todd, briefly describe “workplace violence” and how pervasive is it in business today.
[Wulffson] The Bureau of Justice defines workplace violence as “nonfatal violence (rape/sexual assault, robbery, and aggravated and simple assault) against employed persons age 16 or older that occurred while they were at work or on duty. Attempts are included with completed victimizations.”
Seventy percent (70%) of U.S. workplaces have no formal program covering workplace violence; and only 4 percent of workplaces actually provide workplace violence-related training according to the U.S. Bureau of Labor Statistics (BLS).
What types of activities can organizations do to reduce the number of workplace violence incidents?
[Wulffson] The fundamental components of a comprehensive workplace violence prevention program are easy to list, but complicated in their application. They involve:
- Background checks on all applicants – Only convictions can be considered, you cannot have a blanket prohibition on anyone with a conviction, and there are dozens of state-specific laws governing certain types of convictions, such as possession of small amounts of marijuana;
- Monitoring of employees to spot problems before they arise – Serious privacy concerns come into play with workplace cameras, reading emails and monitoring employees off-duty;
- Training and encouraging employees to provide necessary information – This includes making sure employees who obtain restraining orders let the employer know that the workplace is covered by the order;
- Conducting proper investigations of workplace incidents;
- Consistent, effective discipline that reduces the threat of future incidents from the same person – Termination may be the right decision but it also may encourage violent behavior in response; and,
- Routine training and drills to ensure that all employees know what they are supposed to do – For example, ‘run, hide or fight’ is fine – but run where, hide how and fight who?
I’m always reluctant to say “everyone” when it comes to who should receive training, but this seems like one of those topics where everyone needs to attend training. That being said, should everyone receive the same type of training?
[Wulffson] Everyone should receive training, because everyone needs to be aware of the dangers and how to spot warning signs. Managers should also receive a heightened level of training to emphasize their role, and their potential personal risk, in preventing workplace violence.
While we’re talking about workplace violence training, what are the most important objectives that organizations should address?
[Wulffson] The most important aspects of the actual training are:
- Making sure employees understand that they should report issues that may relate to or lead to workplace violence (the employer cannot mitigate risks that it does not know exist);
- Providing examples of the most common workplace violence (active shooters are rare, but verbal arguments in the workplace lead to violence all the time);
- Performing drills with the employees for common scenarios (think fire drills – except drill for responding to a gun in the workplace, suspicious character lurking around the facility or dealing with a coworker who is threatening to do something stupid).
Does offering workplace violence training provide a proactive defense against any litigation that might arise? Why or why not?
[Wulffson] Yes, having a proper policy and practice will minimize litigation. Most workplace violence incidents are covered by workers’ compensation, and neither federal law nor specific state laws explicitly require a workplace violence prevention program. However, the federal Occupational Safety and Health Administration (OSHA) and its state analogs, mandate that employers provide a workplace free of ‘known health and safety hazards,’ which easily applies to workplace violence incidents. Many states are actively working on legislating a requirement, and a very good argument can be made right now that it is negligent for employers not to have such programs in place.
It is also equally important to make sure that the program applies to the workplace and that employees are properly trained on how to implement and administer it. A policy downloaded from the Internet that no one reads is arguably worse than having no policy at all. It also can help dramatically in a lawsuit brought by a third-party (i.e. someone not confined to workers’ compensation) to be able to show that the business took reasonable steps to try to prevent workplace violence.
My thanks to Todd for sharing his knowledge with us. If you’re a California employer, you might want to check out CDF’s California Labor & Employment Law Blog.
It’s unfortunate that we have to think about workplace violence, but we do. Everyone expects a safe work environment. Educating employees and managers is the first step towards getting there.
Image nicely captured by Sharlyn Lauby while exploring West Palm Beach, FL11