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Approximately 2 million assaults occur in the workplace each year. Labor statistics and the National Institute of Occupational Safety and Health indicate that there are more than 1,000 murders per year while at work or on duty, making homicide the third leading cause of fatal occupational injury. In addition, more than 18,000 employees are assaulted each week in their workplaces. An impaired or disgruntled employee, an employee’s estranged partner, or a criminal can all pose a threat to the work force. Generally, perpetrators fall into the following four categories: strangers; customers/clients; co-workers; and personal relations. Further, the tragic events of Sept. 11, 2001, demonstrate that the possibility of a workplace disaster cannot be discounted. In the wake of the number of violent acts, threats of violence, and critical incidents in the workplace, victims, survivors and their families are holding employers, as well as insurance companies and other entities, accountable. Although sensational or shocking acts of workplace violence, such as mass murder by disgruntled employees, are media-intensive events, they represent only a small number of violent workplace incidents. The majority of incidents that employers and supervisors must deal with on a daily basis are lesser cases of assault, domestic violence, stalking, threats, harassment, emotional abuse and intimidation that, if left unchecked, may result in more serious violent behavior. Unfortunately, most employers fail to address the potential for workplace violence until an incident has occurred. However, experience has taught that employers can institute policies to help identify violent situations, reduce or prevent the occurrence of violence, and respond to and mitigate incidence of violence and abuse. LEGAL RESPONSIBILITIES Employers have a duty under federal, state and common law to be proactive in protecting their work forces and providing safe work environments. The general duty clause of the federal Occupational Safety and Health Act of 1970 (OSH Act) requires an employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” The OSH Act requires the employer to conduct a work-site analysis, implement hazard prevention and control, safety and health training and conduct regularly scheduled program evaluations. The OSH Act guidelines require an employer to take affirmative steps to provide a safe and healthful workplace by complying with the general duty clause and the specific standards promulgated by the United States Secretary of Labor. To establish a violation of the general duty owed to employees, the Secretary of Labor must prove that: (1) the employer failed to remove a hazard from the workplace; (2) the hazard was “recognized” (based largely on statistical or historical data); and (3) the hazard caused or is likely to cause death or other serious physical harm. The OSH Act has assigned a special representative to lead the agency’s violence prevention efforts, and has cited employers who have failed to protect employees adequately from criminal acts of violence in the workplace. Although the OSH Act does not grant a private right of action to employees, an employer’s failure to protect employees may expose the employer to tort liability. Employers who fail to comply with the general duty clause and who fail to take proactive measures to adequately protect workers from workplace violence potentially are liable for substantial fines and criminal penalties. An employer also must consider the impact of the Americans with Disabilities Act. The ADA mandates that an employer provide “reasonable accommodation” to otherwise qualified candidates or employees with physical or mental impairments, to the extent an employer may do so without undue burden. However, the employer need not provide reasonable accommodations to an otherwise qualified individual with a disability if the individual poses a direct threat to the health and safety of himself or others. Under the ADA, the term “direct threat” means posing a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The ADA requirement may place an employer in a “catch 22″ situation. If an employer terminates an employee with an established psychiatric disorder prior to investigating the appropriateness of a reasonable accommodation, the employer may be liable to the employee under the ADA for wrongful discharge. However, if the employer allows the employee to continue with his employment and that employee engages in an aggressive act and injures someone in the workplace, the employer may be liable either under the OSH Act or to the injured person directly under a common-law tort theory such as negligent hiring or supervision. The New Jersey Law Against Discrimination is analogous to the ADA with respect to disabilities. The NJLAD directs employers to provide equal opportunity to those applicants or employees who possess physical and/or mental, psychological or developmental disabilities. As does the ADA, the NJLAD may place employers in a “catch-22″ where the employer may be exposed to liability under the NJLAD if it fails to hire the disabled individual, or liability under the OSH Act or the common law if the employer hires the individual and that individual later harms someone else. New Jersey employers must also take notice of the New Jersey Worker Health and Safety Act (WHSA). The WHSA requires every employer to “furnish a place of employment which shall be reasonably safe and healthful for employees.” The WHSA speaks to the same general duty obligations set forth by the federal OSH Act and requires employers to “install, maintain, and use … employee protective devices and safeguards … and where a substantial risk of physical injury is inherent in the nature of a specific work operation, [the employer] shall also … establish and enforce such work methods, as are reasonably necessary to protect the life, health and safety of employees, with due regard for the nature of the work required.” Exempt from WHSA are: schools, colleges and universities; places of employment with fewer than four employees and no manufacturing activities; banks and other financial institutions; places of employment where workers are primarily engaged in office operations; and retail establishments with fewer than ten employees. The Commissioner of the New Jersey Department of Labor is authorized by the WHSA to bring complaints against employers who are in violation of the WHSA’s provisions and can prosecute such violations. Another New Jersey statute, the Public Employees’ Occupational Safety and Health Act, requires a public employer to provide employees with employment equipment, facilities and circumstances free from recognized hazards that may cause serious injury, physical harm or death to the employees. In addition to the federal and state statutory obligations discussed above, an employer also must be aware of its common law obligations to employees and to third parties. An employer has a legal duty to exercise ordinary care to maintain a safe workplace and to protect employees, as well as members of the general public. However, employers do not have a duty to protect employees or third parties from acts that are generally not foreseeable. Thus, if an employer does not know and has no reason to know a dangerous condition exists, the law does not require the employer to act. For example, unless the employer is in a high crime area or a high risk business, an employer typically cannot reasonably foresee a criminal act committed by a third party, such as a customer or transient criminal, and therefore may not be liable for any injuries to employees or customers on the premises that result from the act. An employer is responsible for the actions of an employee taken in furtherance of his employment duties. The employer also may be held responsible for acts outside the scope of employment if the employer failed to take action to prevent foreseeable injuries. For example, an employer may be held liable for negligent hiring if the employer knew or should have known an employee was dangerous or unfit to fulfill his duties, and it was foreseeable that the employee created an unreasonable risk of harm to others. A breach of this duty may occur when an employer fails to conduct a thorough and appropriate review of an applicant, which may include a background check, prehire screening, reference check and an effective interview. Additionally, an employer may be liable for improperly training or failing to train or supervise an employee effectively. For example, a guard who is issued a handgun mistakenly shoots an innocent bystander. The guard’s employer may be liable for negligent supervision, if the employer failed to adequately train the guard as to the handgun’s use or failed to supervise the guard’s use of the handgun adequately. An employer has an affirmative obligation to train its employees appropriately, especially in the areas of anti-harassment and workplace violence, and must make it clear that neither will be tolerated. It is the responsibility of the employer to ensure that its employees understand their own responsibilities, and that supervisors monitor both the workplace and work force to ensure compliance with all applicable laws and company policies. All threats of violence must be taken seriously. Where an employer retains an employee when it knows or has reason to know that the employee is unfit for duty, or poses a threat to coworkers or to the general public, it may be held liable for injuries caused by that employee. Thus, even if the employer had no reason to suspect that an employee posed a threat to others at the time of hiring, if the employer learns subsequently that the employee is dangerous, or has constructive knowledge of the same, the employer’s failure to take appropriate steps to protect others may create potential liability for negligent retention. In addition, it is possible that an employer may be held liable for failing to warn employees or third parties about an employee’s known dangerous propensities if the offender has a history of violent acts, or has a previous conviction for assault of which the employer is aware. A court might find that the employer’s failure to warn was a contributing factor to the assault, and may hold the employer liable. SATISFYING OBLIGATIONS To ensure workplace safety and to minimize employer exposure to liability, employers should consider taking a number of steps to ensure that the work environment is secure, and that communication, data-recovery, and evacuation plans are in place. Such steps should include the following: First, it is imperative that an employer maintain, disseminate, and enforce a strict written policy of intolerance for violence and threats of violence in the workplace. The employer should also promulgate policies, such as those regulating anti-harassment and drug and alcohol use. In defining acts that will not be tolerated, the policy should make clear that not just physical violence, but threats, bullying, harassment and weapons possession, are against company policy and prohibited. Such policies should include a procedure for employees to report threats or acts of violence to management, without fear of retaliation. Finally, all policies should be applied consistently and state clearly the consequences to violators. Employees should be trained and educated in existing security and control procedures, strategies to de-escalate potentially violent situations, reporting procedures and emergency procedures, such as crisis procedures, for responding to threats or actual incidents of violence. In addition, employers should train employees to anticipate, recognize and respond appropriately to conflict in the workplace. Employees should be taught to identify the signs of potentially violent individuals and recognize indicative behaviors such as name-calling, making threats, throwing objects, dramatic mood swings and hitting. Employee assistance or counseling programs should be provided and promoted, particularly to workers who make threats or demonstrate bizarre or harassing behavior. The employer should have a safety committee or threat assessment team in place to be responsible for receiving, investigating and taking immediate action to address all complaints under the company’s workplace anti-violence policy. At minimum, the team should include representatives from operations, security, human resources and legal departments. To identify risks, the team should conduct a physical inspection of the premises, distribute employee questionnaires and contact local law enforcement to learn of special areas of concern. Limiting access to the premises, requiring employees and visitors to wear identification badges and sign-in at a reception area, and posting security numbers by telephones are frequently used mechanisms by employers. Developing an evacuation plan and performing periodic drills may be critical. All exits should be clearly marked and adequate lighting should be installed in all stairwells, passageways and parking areas, and safety equipment should be clearly visible and easily accessible. Furniture and partitions should be arranged to prevent the entrapment of employees. A catastrophe plan should be developed by the employer, together with counsel, to guide a response to a critical incident. Such a plan should have a telephone contact list, notification guidance, and other useful information. Master file information should be stored in an accessible, off-site location. Critical information such as employee lists, customer lists, insurance coverage, bank information and the like should be collected and maintained off-site. If there is any good news in this area, an employer can take steps to be in the best position to prevent violence from occurring in the workplace, and, if an incident should occur, to cope with its aftermath so as to minimize the impact on employee morale and limit potential physical and financial loss. Lester is chair of and Sadati is an associate in the Employment Law Practice Group at Lowenstein Sandler in Roseland , N.J . If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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