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The news from the Jacksonville Times-Union: “Two Florida State Department employees are shot and a third killed when a disgruntled employee opens fire, shooting two and then killing himself.” The news from the Chicago Tribune: “At first we didn’t believe it; we thought it was a joke, … then we heard two or three shots.” You read it in the newspapers: angry spouse goes to wife’s job site, opens fire; disgruntled employee commits random act of violence against co-workers. These scenarios are alarming, but they represent a violent reality often celebrated in American pop culture in books, movies and even children’s cartoons. This popular trend toward violence in all forms continues to escalate. Figures released by the U.S. Bureau of Statistics show that in 1998 homicide was the third leading cause of death in the workplace and the leading cause of occupational death for women. The Occupational Safety and Health Administration reports that an average of 15 workers are victims of work-related homicides every week. Employers have long been aware of some of the hazardous workplace issues, such as a location in a high-crime area and employees handling relatively large amounts of cash. But in modern times, they have to be aware that the trend toward violence from co-workers and personal relationships outside of work has accelerated in recent years. Homicide is not the only workplace violence that has escalated. In a 1993 survey done by the Society for Human Resource Management, it was found that one in every three sampled workplaces had experienced a violent incident in the previous five years. Three-fourths of those incidents involved fistfights. Nearly one-fifth of the incidents involved shootings. The survey also reported increases in stabbings, sexual assault and the use of explosives. U.S. Department of Justice National Crime Victimization Surveys statistics published in July 1994, the most recent available, found that nearly 1 million workers were victims of violence while working. Concurrent with this trend of increased violence in the workplace is a growing trend of litigation. Workers’ compensation generally covers those injuries to employees at the workplace in suits for claims of violations of the OSHA general duties clause and for gross negligence in the failure to safeguard employees adequately from these incidents of violence by co-workers and others. In recent cases, such as 2002′s Curtis v. Jazz Casino Co.from the U.S. District Court for the Eastern District and 1999′s Simpson v. State of Texasin the 3rd Court of Appeals in Austin, employers have been faced with explaining their failure to make any sort of policies, threat assessments or contingency plans to protect workers from potential workplace violence. Part of the reasoning for this stems from the notion that the violence is unpredictable and cannot be planned for. This perception does not follow reality. According to surveys by SHRM and others, in more than two-thirds of the cases, the co-workers believe that the violence could have been predicted and that the culprit of workplace violence could have been identified prior to the violent incidents. When advising your clients, there are several steps that can be taken to show efforts to protect your employees from these violent incidents. In fact, OSHA has issued guidelines concerning steps that should be taken to ensure against workplace violence and to establish the methodology for preparing to defend against workplace violence. There are several simple steps, not economically burdening ones, which can be put in place to materially improve your chances of surviving incidents of workplace violence. OSHA takes the position that these obligations are required under the general duty clause, § 5(a)(1) of the Occupational Safety and Health Act of 1970, requiring employers to provide their employees with a place of employment that is “free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” The steps that can be taken are simple: • stricter policies; • actual threat assessment; and • heightened security. Most employers have a strict prohibition and zero tolerance of workplace violence. Most employers restrict or limit the right of individuals to carry weapons on the premises. Unfortunately, employers have not done a good job of demanding that all incidents of workplace violence be reported. Verbal confrontations, shouting matches and shoving matches should be reported as incidents of workplace violence. Many times a problem has escalated before management becomes aware an issue may be brewing. Not only should employers have a strict zero tolerance policy toward workplace violence, but they also should be diligent in reminding supervisors and co-workers that reporting even what they deem as minor incidents is critical to successful implementation of a no-violence policy. Similarly, while most employers prohibit weapons, few take steps to actively police these activities. One simple step that can be taken is to require anyone holding a licensed permit to carry a handgun to give notice to their employer that they indeed have a license. As many employers have discovered, while they do not allow weapons on their physical property, many permit carriers have weapons in their vehicles. Where are those vehicles parked? While ownership of a license or handgun permit is not in itself an indicator of the potential for future violence, a watchful employer should be well aware of who has relative close access to weapons. One other policy worth mentioning is that employers should strictly control access to their facilities. Most employers are careful not to permit members of the general public to wander into their facilities, but allow open access to their facilities for spouses, relatives and friends of employees. Of the incidents resulting in violence toward women, spouses and people with whom the women have had intimate or personal relationships cause the majority of the incidents. Access by non-employees should be strictly limited. One final policy change is that employees be required to give the employer notice if an employee requests or obtains a protective order against an individual. This alerts an employer that there are individuals who are not to be allowed onto the premises and gives an employer notice that an employee may be at risk for a violent incident. This last policy is not without risks. The employer who has such a policy and obtains notice of protective orders now bears a heightened burden to take some reasonable steps toward protecting that employee during working hours and on the company property. This may include increased observation of the parking areas for the facility and certainly involves making sure that any security personnel are aware of a heightened risk. For all companies, whether the company maintains its own security force or not, the employer should know and be aware of the watch commanders for the police departments in their area. While the police are under no obligation to provide security for your property, the employer should be able to contact officers in charge of patrols in their division to make them aware of heightened risks or concerns to ensure prompt response to any calls and to obtain a possible increase in patrols in the area. THREAT ASSESSMENT Every company should create a threat assessment team to assist in targeting risk issues for that company’s respective employees. A threat assessment team should include representatives from senior management, operations, staff employees, security, finance, legal and human resources. They should review all incidents of assault, abuse, verbal attacks, aggressive behavior and review the records of the company involving OSHA laws, incident reports, crime statistics for the area, insurance records, police reports, accident investigations and grievances. There may be instances where the actions of employees during grievance procedures, disciplinary actions or terminations are such that the company either should utilize security officers or obtain temporary security services. However, those instances aside, all employers should review their physical plants and facilities with workplace violence and protective measures in mind. The number of exits and entrances to a facility always should be restricted. Review of the layout and landscaping should be taken to denote high-risk areas where potential attackers can hide. This has implications for the design of the buildings and the parking areas, landscaping, placement of garbage areas, outdoor refrigeration areas and other storage facilities that workers must use during work shifts. Numerous security devices may reduce the risk for assaults of workers and facilitate the identification and apprehension of perpetrators, including the use of alarms, card key access, panic bar doors, close-circuit cameras and the like. However, these often involve economic decisions and the reasonableness of their use will vary according to the potential for physical harm, the size and financial stability of the company, and the nature of the company’s business at that particular facility. Employers face many challenges in attempting to prevent workplace violence. They have a legal obligation to protect their employees and patrons from acts of violence. While there are several claims in addition to workers’ compensation that may be raised, such as gross negligence, negligent retention, supervision and violation of the general duty clause, the threshold issue is always the foreseeability of the risks and the reasonableness of the employers’ actions in light of the foreseeable risks. While no activity can be absolutely protected against workplace violence, the steps suggested do allow for individuals to assess the threat potential and allow the company to accumulate information to accurately make a risk assessment and begin formulating strategies to provide reasonable levels of protection. For more information regarding these issues, visit the following Web sites: www.workplace-violence-hq.comor www.cdc.gov/niosh/violcont.html.

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