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Workplace violence increased tenfold during the 1990s. On a daily basis, compared to a cop on a beat, employees are more likely to be subject to mayhem, assaults, threats, intimidations, obscenities and psychological bullying, and much of this abuse goes unreported. According to the Department of Justice’s most recent National Crime Victimization Survey, issued in 1997, there are approximately 2 million assaults and threats of violence against Americans at work each year. Potential employer liability for workplace violence is well established, and juries tend to be generous with their awards. Most employers believe that state workers’ compensation statutes provide the exclusive relief for injuries arising out of an individual’s employment. But courts across the country are carving out exceptions to this exclusivity rule by establishing and rapidly evolving an intentional-tort exception to workers’ compensation claims. An intentional-tort theory becomes applicable when the nature of an injury does not arise “by accident” within the employment setting. Employer liability for third-party actions occurs when the employer does not act to prevent or eliminate a known threat. Once the intentional-tort exception has been alleged, an injured employee can proceed under a variety of common-law theories, including a voluntary assumption of a duty to protect, negligent security, negligent failure to warn, negligent hiring, negligent retention, negligent supervision and other potentially expensive torts on which there is no financial cap. An employer will be in a much better position to defend itself in a suit involving workplace violence if it can demonstrate that, at the time of the violent incident, it had adopted and implemented a violence-prevention program. More important, such programs can save lives. The same organization that gave rise to the most widely used euphemism for workplace violence — the U.S. Postal Service — is now safer than the average workplace since its adoption six years ago of a zero-tolerance policy for violence. The U.S. Postal Service has teams in 85 districts around the country, trained to assess any threats of violence that may arise. A focal point of its program is employee preparedness — formulating a plan of action before something happens. [FOOTNOTE 1] Today, the Postal Service is probably the worst place to make a violent comment or even a violent wisecrack because such a remark will be taken seriously and management will act. DUTY TO PROTECT An employer’s duty to protect employees from the criminal acts of third parties arises from the employer’s express or implied promise to provide a safe and secure work environment. Once an employer is found to have assumed a duty to provide security, the employer is bound to exercise this duty with reasonable care. Failure to do so creates liability if harm arises. Moreover, the foreseeability of danger, especially in the context of domestic violence, can sometimes even be dispositive against an employer. For example, in LaRose v. State Mutual Life Assurance Co., No. 9322684 (215th District Ct., Harris County, Texas, 1994), Francesia LaRose’s family filed a wrongful death action against her employer on the basis that the company had failed to protect LaRose adequately after her former boyfriend called her supervisor and told him that if LaRose was not fired, he would come to the office and kill her. The next day, the ex-boyfriend walked into the building where LaRose worked, walked right past the security guard — who allegedly had pictures of him — and shot and killed LaRose. Her daughter reportedly received $800,000 in a structured settlement, and LaRose’s parents received $50,000. When an employer voluntarily provides security, a duty to provide adequate security is created. In Vaughn v. Granite City Steel, 576 N.E. 2d 874 (Ill. App. Ct. 1991), the court awarded an employee’s estate $415,000 in a wrongful death action when an employee was fatally shot in the employer’s parking lot and the evidence showed that security was “grossly inadequate.” In a $7.9 million verdict rendered in May 1999, a jury found Union Butterfield and Dormer Tools negligent for failing to protect two men who were killed when a violence-prone worker who had been fired went on a shooting spree in Asheville, N.C. The fired worker had threatened to return and “take management with me.” See Allman v. Union Butterfield, No. 97 CVS 1161 (Buncombe Co., N.C. Sup. Ct. 1999). WAKE-UP CALL Recent shootings are a chilling reminder of the vulnerability of America’s workplace. They should be a wake-up call for employers to be proactive — first, to protect their employees; and second, to protect themselves from lawsuits. ::::FOOTNOTES:::: FN1See ” Workplace Crisis Plan.” Donald F. Burke is a principal in the Labor and Employment Law Group of the Baltimore office of Semmes, Bowen & Semmes. His practice involves representation of management and all facets of human resource-related matters.

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