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A Miami personnel director was extremely worried that a dangerous-looking man was dropping by the company’s office to visit an employee, his former girlfriend. The employee didn’t want the visits and feared that she would lose her job because of them. More than that, she was afraid her ex would kill her right there in the office. The personnel director called Sherry D. Williams, a labor and employment lawyer and associate at Kirkpatrick & Lockhart in Miami, who agreed the situation was explosive. In early 1998, Williams and the personnel director promptly sat the woman down, assured her that her job was safe, and advised her on how to obtain a court restraining order. To everyone’s relief, the ex-boyfriend soon was arrested and jailed for stalking. America is a violent place, and the endless string of workplace shootings has made employers increasingly edgy. Workplace violence has risen 300 percent over the past decade, according to the National Institute of Occupational Safety and Heath. This figure includes episodes both inside and outside of the work site, and acts committed both by and against employees. The institute reports that more than 18,000 violence-related injuries occur each week. It ranks homicide as the No. 1 killer of women at the workplace, and the second-leading cause of death for men after workplace accidents. While they’re reluctant to admit it, these tragedies are boosting business for labor and employment lawyers in South Florida and elsewhere. They frequently receive phone calls from anxious employers who spot volatile situations. And they spend a growing amount of time counseling clients on violence prevention strategies, including conflict-resolution training for managers and workers. Besides protecting the safety of the workers, the goal of these lawyers and companies is to head off costly lawsuits against the employers, which often follow incidents of workplace mayhem. If violence does occur, companies want to be able to say, “We did everything we could to prevent this tragedy.” Irving Miller, a shareholder in the Miami office of Akerman Senterfitt, says that when he discusses a new client’s labor and employment law needs, violence prevention is never far down the list. Five years ago, the topic was never discussed. “I’ve been doing this 33 years,” he says, “and I’ve done more violence prevention training in the past two years than I have in the past 30.” Sean N.R. Wells, a partner at Feldman Gale & Weber in Miami, says his phone generally starts ringing right after a fresh news report of an office or school shooting. “We get calls saying they heard a rumor or someone was seen in the parking lot, and they ask, ‘Should I be concerned with this?’ ” Wells says. “ The answer, obviously, is yes.” LIABILITY RISK Employers have good reason to fret about their liability if workers are injured or killed, or if they hurt others. Heather L. Gatley, a labor and employment lawyer and partner at Steel Hector & Davis in Miami, says plaintiffs or their survivors are suing employers under a variety of liability theories. She expects to see more such suits with the current downturn in the economy, which will compound stress and increase domestic abuse and alcoholism. “I think society in general is just becoming more litigious,” she says. “When you consider that people are spending more time at work, coupled with the increase in violence, the conclusion is that more employers are getting sued.” In a 1991 case, a Florida furniture company was found liable for more than $1 million in compensatory and punitive damages when one of its delivery drivers assaulted a customer. The jury found that the company failed to properly screen the driver, who had problems with cocaine and heroin and a lengthy criminal record, when it hired him. Another Florida company was sued in 1994 when an intoxicated employee left an after-hours company function and caused a drunk-driving accident. That same year, a Texas convenience store was sued for $16.5 million when a store clerk was raped on two separate occasions — the second time after the company had refused to install new security measures. These and other cases prompted Gatley to make a study of the subject to try to identify ways of reducing liability. She read dozens of articles by security consultants and former law enforcement officials on workplace security. What she’s learned helps her protect her employer-clients from the unthinkable. Negligence, she found, is the most common grounds for litigation. Employees potentially can sue for negligent hiring, including failure to screen for violent tendencies, negligent retention and negligent supervision, such as allowing infractions to go unpunished or unmonitored. Gatley says plaintiffs often combine negligence allegations with other liability theories, including failure to warn, inadequate safety measures and wrongful death. They also rely on the 1970 Occupational Safety and Health Act, which treats violence as a byproduct of an unsafe workplace and provides civil remedies. Miller says judges steadily have expanded employer negligence to include the actions of employees. “The law has migrated beyond the machinery that you use to the people you hire,” he says. After giving lectures on violence prevention, Gatley has been approached by employers asking her to conduct in-house seminars for managers and workers on violence prevention. One company for which she’s conducted a seminar is Randstad North America in West Palm Beach, Fla., which provides placement and human resources consulting. Gretchen Guender, market manager for Randstad, says that when a potentially hostile situation arises, “it’s important to address it immediately.” Allan H. Weitzman, a partner and head of the labor and employment division at Proskauer Rose in Boca Raton, Fla., says his firm doesn’t market its expertise in violence prevention. But the calls from clients keep coming anyway. He says that “if you don’t know how to answer the phone when the client calls and says, ‘There’s an estranged husband outside, what do I do?’ then you’ve got a problem.” PREVENTION STRATEGIES Labor and employment lawyers work with employers to help them avoid negligent errors and omissions that can lead to liability. In the wake of so many incidents of workplace violence around the United States, some employers immediately contact their attorneys when there is a crisis or potential crisis. Tom Loffredo, head of the labor and employment unit and partner in the Fort Lauderdale office of Holland & Knight, says companies sometimes call even after a fistfight between employees. In that situation, he will examine employee records and cross-examine witnesses to determine exactly what happened, assess the company’s potential liability and make a recommendation on how to discipline the offending party. “You have to take every threat seriously,” he says. Lawyers urge employers to address both external and internal violence threats. Most employers already are familiar with the external threat — muggings on a delivery route, sexual assaults in the parking garage, manhandling by angry customers, etc. Estranged boyfriends and stalkers are newer phenomena. Internal violence, however, is less familiar terrain. This involves worker-on-worker violence, and may include verbal assaults and threatening e-mails. The law, however, does not distinguish between the two types of violence, which carry the same liability risks. Attorneys often help employers spot early-warning signs of at-risk employees. Violence at work is closely linked to stress at home. Divorce, bankruptcy, alcohol or drug abuse and domestic violence can spill into the workplace. Other danger signs are a fascination with guns and sudden negative changes in performance. Employers also must be aware of how violence manifests itself differently in different kinds of places. Fisticuffs are more likely in blue-collar settings, Williams observes; white-collar workers are more apt to send threatening e-mails. Wells says violent incidents are more likely where physical contact is part of the job. Paramedics and police officers, for example, are at greater risk both of being assaulted and of injuring someone in the line of duty. BENEFITS OUTWEIGH COSTS There are a variety of ways to reduce potential liability. Establishing stronger security measures can help. Gatley encourages companies to obtain a security evaluation, which may result in recommendations to improve lighting, install drop safes or surveillance cameras, post security guards, etc. Employers also should assign a response team of workers or managers responsible for contacting police in a crisis. Gatley’s advice paid off for at least one employer-client. At her urging, the client had established a violence-prevention policy requiring employees to report suspect behavior. About two years ago, an unsuccessful job candidate became obsessed with the company’s female interviewer in Miami. The man kept returning to the office to see her. Because of the policy, the woman reported the behavior, and the company was able to obtain a restraining order against the man, who wound up in jail. It’s essential, she says, to thoroughly screen employees before hiring, including checking references — something surprisingly few employers do. She urges companies, however, to have an attorney review all hiring policies, because poorly written policies can create new causes of action. For example, employers should never conduct pre-employment polygraph screening or search worker compensation records on potential hires, Gatley warns. The former is prohibited by statute, while the latter could invite a discrimination claim. Drug testing and criminal background checks are OK, she says, as long as they don’t result in fewer minority hires. That could trigger an expensive employment discrimination claim, or even a class action, under civil rights law. Minorities are hardly the only ones who may sue. Weitzman says a white male passed over or fired on the grounds of “strange behavior” could sue under the Americans with Disabilities Act, which prohibits discrimination against those with mental or emotional disabilities. “The assumption that someone has a few screws loose can get you into ADA trouble,” he warns. Still, attorneys say ADA claims are cheaper to defend than wrongful death suits. When an employer called him 15 years ago and asked for his advice on how to handle a hostile employee, Miller says he often counseled inaction. Today he’s far more worried about acts of violence and might well recommend that the employer rush the worker off for a psychiatric evaluation. Williams says a strong, carefully considered violence prevention program has tangible benefits for employer-employee relations. It shows workers that the company cares about their welfare. “That sounds a little hokey,” she says. “But the employees who know the company cares about them are going to work harder and be more productive.”

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