An unfortunate issue employers continue to face is the rise of workplace violence. The most recent statistics from the Bureau of Labor Statistics show 392 workplace homicides and 37,060 nonfatal workplace injuries resulting from an intentional injury by another person in 2020, when many workers were forced to stay home due to the global pandemic.
By all accounts, workplace violence numbers are increasing and will be much higher when the statistics for post-pandemic shutdowns are available. Reports of incidents appear weekly—sometimes even nightly—on local and national news. All of this fuels employees’ growing concern for their safety in the workplace and the potential for employer liability.
Whatever threat of violence an employer may experience, having a plan could help your employees be more prepared for a violent incident. Knowing where to go, whom to call, and what to do could make a huge difference.
OSH Act
It is important to note that employers have a general duty under the Occupational Safety and Health Act of 1970 (OSH Act) to maintain a workplace free from recognized serious hazards. The OSH Act was initially motivated to reduce workplace deaths caused by industrial accidents and exposure to unsafe working conditions. But the Act addresses many types of hazards.
According to guidelines published by the Occupational Safety and Health Administration (OSHA), employers are not strictly liable for violence in the workplace, including workplace shootings. There are no standards in the OSH Act that specifically require you to protect your employees from criminal acts committed by violent persons.
Courts have noted that because workplace violence affects a wide range of employers, enforcing the OSH Act in a way that polices social behavior (including workplace shootings) would create an “extraordinary” burden on employers and enforcement agencies.
But even though workplace violence isn’t explicitly mentioned in the OSH Act, you shouldn’t ignore the possibility that a tragedy could occur. You do have a general duty to take actions that help minimize the risk of workplace violence if you recognize that there is a risk.
Workplace violence prevention plans
One significant means of addressing the potential for workplace violence and reducing employees’ growing concern for their safety is developing or enhancing a violence prevention plan. While no prevention plan can provide absolute protection against violence at work, preventing workplace violence with policies that empower your employees to report violent and harassing behaviors and other signs of danger early on can eliminate undesirable employee behavior and significantly reduce risk.
These policies show employees your level of commitment to preventing violence in the workplace at all stages.
A workplace violence prevention plan with specific corrective discipline in place should include these essential elements:
1. Establish a workplace prevention policy
One of your top goals should be creating a work environment where employees feel free to raise their concerns about potential violence. Take a big step in that direction by creating a workplace violence policy that provides clear procedures for supervisors and employees to report and respond to threatening or violent behavior.
Some suggested contents include:
- Specific examples of behavior that will be viewed as violence, including but not limited to physically threatening statements, gestures, and expressions.
- A statement that employees who commit such acts may be removed from the premises and subjected to disciplinary action, criminal penalties, or both.
- Guidelines encouraging employees to report violent behavior.
- Assurances that reports of workplace violence will be investigated promptly and thoroughly.
2. Train your supervisors
Unlike business owners, senior management, and HR directors, supervisors observe and interact with employees daily. So, it’s crucial that they have adequate training to identify and address the potential for workplace violence
Supervisors should know:
- How to identify potentially violent employees and what to do about it.
- To be reasonable and even-handed in their dealings with employees. This includes addressing performance and disciplinary problems promptly and consistently following your disciplinary procedures.
- How to sensitively handle terminations, layoffs, and demotions, avoid provoking employees, and defuse a potentially violent situation.
3. Investigate claims fairly and thoroughly
You can’t just fire an employee on the unsupported word of another employee — who may have misinterpreted or overreacted to a stray comment, have a grudge against the accused, or have emotional problems themselves.
Once an investigation is completed, management should evaluate the evidence and make a decision. Although most managers and human resources professionals worry about making the “perfect” decision, neither employees nor the courts expect legal perfection. Rather, they expect a rational decision based on a thorough investigation.
Courts generally do not second-guess employer actions, even when later proven wrong, if management acted fairly and in good faith. Therefore, you do not have to meet a strict rule of evidence “beyond a reasonable doubt,” as in a criminal offense, to make a proper employment decision.
As a last step, all appropriate parties should be informed of the decision. This communication can be used as an opportunity to underscore the fairness of the process. However, to prevent defamation claims, you should be careful to limit the dissemination of the information to those who have a legitimate need to know.
4. Discipline as appropriate
Typically, the typical sequence in a corrective disciplinary system is a verbal warning, one or two written warnings, suspension, and, finally, termination. These procedures notify employees of a problem, the steps to meet expected standards, and the consequences of failing to improve. Employees who do not improve as expected receive progressively more serious warnings and recommendations.
The goal of the discipline system is the correction of problem behaviors and not punishment for the sake of punishment. Employees are more likely to accept discipline when counseling and disciplinary procedures emphasize employee improvement and when warnings are given before more severe discipline is imposed.
Employers can deviate from the usual steps in the policy if they expressly reserve the right to do so. Most employers follow through on the disciplinary steps described in their policies and only skip steps when an employee’s performance or behavior significantly deteriorates during the disciplinary period instead of improving or if the employee resists making any changes to improve.
Thus, when an employee’s violent behavior is so egregious that termination is warranted, it’s best to get it over with as soon as possible. The more time passes, the greater the chance the employee will have to perceive that they’re being treated unfairly at work, potentially resulting in future violent behavior.
Additional Provisions for Prevention and Response
Ultimately, employers should be aware that workplace violence is an increasing phenomenon and adopt explicit provisions for prevention and response. Having a plan for employees to follow can be critical during an emergency.
Your plan or policy should include procedures for notifying emergency responders, management, coworkers, and employees’ families. It also should address procedures employees can use for reporting potential warning signs or threats of workplace violence before they materialize into something more.
Business and Learning Resources (BLR), a division of Simplify Compliance, LLC, is an industry-leading knowledge provider with more than 40 years of experience in human capital management, environmental, health, and safety; learning and development; and legal markets. BLR® provides innovative education solutions designed to help businesses deliver consistent training, achieve compliance, and maximize efficiencies in employee workflows, resulting in measurable performance and financial improvements.
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