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Violence is endemic in American society. We saw, just last month, scenes of the shooting rampage at the Appalachian School of Law in Virginia. And, with it, the media scrutinized, pundits deplored and citizens despaired. As with any widely publicized violence, general counsel at companies took a collective breath and wondered: “Are we doing all we can to prevent this type of incident, and if not, what should we do?” We’ve thought about that, too. So, we’ve developed a mantra to hopefully prevent this from happening elsewhere — identify, manage, protect. Identifying problems in the workplace starts even before you hire an employee and continues throughout employment. Before hiring, review each application or r�sum� for unexplained gaps in employment or for a series of jobs in a short period. Time and again, these are predictors of a problem or high-risk employee. Look for other red flags as well, such as applicants who list only relatives as references. Also, have a background check performed to uncover any criminal history. But remember, since criminal records are often kept by county, all the counties in which the employee lived and worked must be checked. Finally, consider using physiological or personality tests — consistent with your obligations under the Americans with Disabilities Act — to identify those applicants who are prone to violent behavior or unable to work with others. But don’t stop there. Go further. Have all applicants sign a waiver, releasing previous employers from liability for speaking their minds. Then contact those references. Also, leverage the interview process to screen out undesirable applicants. Ask each applicant whether she has ever had a disagreement with a co-worker or boss and how she resolved it. Inquire about stressful job situations and ask her how she handled it (or just as importantly failed to handle it), or describe the stressors in the job and ask her how she would handle them. Once hired, keep your eyes and ears open. Too often in situations of violence, red flags are ignored. Employees made threats that no one took seriously, until after the fact. But it is now well known that employees who talk about committing violence are more likely to do so. So listen to your employees and do not ignore or minimize threats. Here’s a home base rule: Manage the situation; don’t let the situation manage you. So, if an employee acts inappropriately at work — bursts of anger, screaming — counsel him. Tell him that this type of behavior is inappropriate, no matter how much stress he is under or how unfair he believes others are being. Let him know that there is a correct and professional way to have grievances addressed, and you expect him to use those channels. If he doesn’t stop, fire him. Disabilities law is settled: Even if the outbursts or odd behavior are caused by a mental or physical condition, an employer can hold the employee accountable for his conduct. Just understand — and document — that the employee is being fired because of the behavior, not his mental condition that might be causing the behavior. COOL OFF But the capital punishment of termination is often unnecessary if you don’t let the situation or employee get to the boiling point. Try these ideas: � Have a mandatory vacation policy and enforce it. No ifs, ands or buts. Don’t let employees cash in unused vacation, make them take it. You will find that you will have rested employees with better perspectives, fresher ideas and thoughtful approaches. � Let employees blow off steam in a constructive way. A project team working feverishly to get a software program out the door may find it useful to have outlets — whether a punching bag or a foam covered bat. Also, make it OK to have a cooling-off period in difficult situations. Give permission for an employee to declare a time-out and go cool off for 15 minutes. And, if you find yourself getting hot under the collar, take a break before confronting the employee or issue. � Contract with an employee assistance program (EAP), then let your employees know that they can go there for help. But note: An EAP is not a gulag to which you send an employee, then wash your hands. There is continued interaction between you and the EAP (but not the therapist) so that you can assist in returning the employee to work. By the way, the EEOC recently issued an opinion letter stating that merely referring an employee to an EAP is insufficient to state a “regarded as” ADA claim. � Make sure your employees understand they have a right to take leave under the Family and Medical Leave Act if they need to, and that they will not suffer retaliation for doing so. Also think about revising your policies. Many companies require employees to report off-color jokes, but not threats of violence. As noted above, these threats are ignored at your peril. � Prepare, prepare, prepare. Develop simple operational guidelines; for instance, make sure the receptionist has emergency numbers to call. And, start compiling a list of security agents, psychologists, lawyers and public relations experts to help you out if need be. The threats made by employees can be as nuanced and numerous as human nature. But another home base to which you can safely return, no matter what the situation, is this: Make a proportionate response. By this, we mean your response should be directly proportional to the nature of the threat and its source. The following are illustrations of situations we have dealt with. In the first case, a terminated employee was angry and muttered vague threats (“they are going to get theirs”) on his way out. He was known to talk about guns, and subscribed to a gun magazine. The proportionate response: With the client, we decided to hire a professional investigator to tail the ex-employee for a few days to determine if he was coming back to the facility. We also gave a description of the employee to building security and the company receptionist so that they could be on the lookout if he decided to return. Forewarned is forearmed. (Remember though that days or weeks may elapse between the threat and the action.) In the second case, a female employee was threatened by her spouse. She reported it at work to her employer and described her fear of him harming her. We know that managers often find it frustrating when an employee’s personal life spills over into work, but it is a fact of business and must be dealt with. Even though she was out of paid time off, the company granted her additional paid time off so she could find a family violence center, moved her physical location in the building, and allowed her to change her shift. Again the receptionist and building security were given a description and picture of the spouse, so that they could contact the authorities should he try to enter the building. In a third situation, we used a “supportive separation” with an employee who threatened his supervisor and the plant manager. How did it work? Rather than just fire the employee, the company allowed him to take paid administrative leave and continued his medical benefits for a time as he transitioned out. Why? Violence can be prevented and an employee’s anger can be defused by showing compassion and concern. Some employee profiles warrant this; some do not. The employee in that case had a chronic illness, a wife who passed away a year earlier and often repeated remarks that no one cared. By having a supportive separation, the employer showed it cared and pre-empted a potentially violent situation. There are worse things than being sued, and one of them is having someone hurt or killed when workplace violence erupts. But you are not a sitting duck — as a general counsel there are a range of options open to you that can help prevent workplace violence. Michael P. Maslanka is a partner in Andrews & Kurth, is board-certified in labor and employment law by the Texas Board of Legal Specialization, and has more than 20 years’ experience in labor and employment law. Theresa M. Gegen is a senior attorney at Andrews & Kurth and is board-certified in labor and employment law by the Texas Board of Legal Specialization.

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