These types of incidents are of concern to both employees and employers. Recent statistics indicate these concerns are real and must be properly addressed:
The National Safe Workplace Institute in Chicago, cites 110,000 incidents of damage to people or property in the U.S. workplace in 1992.5
The National Institute of Occupational Safety and Health reports that work-related violence is the leading cause of death on the job for female employees and the second-highest cause of death among male employees in the U.S.6
Some 750 workplace homicides occur each year in the United States.7
In 1991, U.S. News & World Report estimated that crimes against business cost U.S. companies $128 billion in direct losses, legal and litigation costs and security measures. Because companies often pass on the cost of workplace crime to consumers, crimes against business have resulted in a crime tax of $1,376 for every U.S. household.8
Workplace violence may manifest itself in different ways and does not always involve a physical confrontation. For example, an employee may act violently toward another employee, a spouse may demand information or threaten a receptionist over the telephone, a supervisor may assail or harass a subordinate, a worker may assault a customer, client, vendor or service provider of the employer. The incidents of workplace violence that receive the most press coverage usually involve murder, robbery or serious personal injury. Customers, former disgruntled employees, employee spouses or lovers may commit the violence. Many other episodes of workplace violence, not so newsworthy, are also very threatening to the victim. These episodes may include brandishing weapons or handguns, stalking, threatening physical gestures, telephone harassment, trespass and violation of restraining orders by abusive spouses.
CAUSES OF WORKPLACE VIOLENCE
Social scientists, psychologists, security professionals, criminologists, and insurance industry specialists have analyzed workplace violence and identified certain issues that may contribute to the violence. According to the National Safe Workplace Institute, the absence or ineffectiveness of certain social control processes is significant. For example, an economy that supports full employment, a legal system that prevents crime, and a culture that encourages responsible behavior are cited as social processes that moderate violence.9
Some experts say the phenomenon reflects the increased violence in society, the availability of weapons and violence on television and in the media. Others blame it on the economy and corporate downsizing. After a lay-off, remaining workers are often expected to accomplish more with less. Laid off workers find it difficult to find other positions. Continuous corporate restructuring has increased employee stress. Employees do not know from one day to the next whether their jobs are secure. This leads to increased anger and resentment that is frequently misdirected against former employers. Frustrated workers often have difficulty regaining self-esteem and self-confidence. Companies reduce management training and supervisors fail to receive the guidance necessary deal with the increased hostility.
Some experts believe that increased workplace stress coincides with the rise in workplace violence. The increase in two-income families leaves workers with little time for coping with household responsibilities, and significantly less time to spend with their children.10 Workplace stress triggers violence and may create potential liability for the unwary employer.
EMPLOYER LIABILITY:
NEGLIGENT HIRING, RETENTION AND SUPERVISION
Under theories of negligent hiring, supervision or retention, an employer may be found liable for injury caused by the violent conduct of its employees. Employers have a common law duty to exercise reasonable care when hiring individuals who may present a threat of injury to the public.11 Employers have a duty to protect their employees, customers, clients and visitors from injuries caused by employees the employer knows, or should know, pose a risk to others.12 The employer breaches this duty when it fails to protect either its workers or others, such as customers or the public generally, from employees who are unsafe or dangerous in the workplace.13 Employers may be liable for compensatory and punitive damage awards. Compensatory damages may include lost earnings and benefits, reimbursement of medical expenses and property loss, mental anguish and lost wages.
In Texas, employers have a duty to provide a safe workplace for their employees14. Failure to fulfill this duty may result in workers compensation liability for employee deaths and injuries which result from episodes of violence. In Texas, to be eligible for workers compensation benefits, an employee must have been working in the course and scope of employment when injured as a result of workplace violence. An employer is generally not liable to its employees for violence arising from personal disputes between employees which are not related to employment, animosity of a third party toward an employee, the employees own intoxication, and self-inflicted wounds and injuries not occurring in the course and scope of employment.
Generally, employers are not held liable for intentional torts committed by their employees. In Texas, an employer can be held liable for an intentional assault committed by an employee only if it was done in furtherance of the masters business, and for the accomplishment of the object for which the servant is employed.15
Negligent Hiring
To establish a claim for negligent hiring, a plaintiff must prove three elements: existence of a duty to select and retain competent and fit employees; breach of that duty by hire of an incompetent or unfit employee, and; breach that proximately causes the plaintiffs injuries.
To establish that the defendant breached the duty to hire competent workers, the plaintiff must prove the following: the hired employee was incompetent or unfit for the position and the defendant knew or should have known the employee was incompetent or unfit.16
The plaintiff must also prove that negligence in the hiring of the incompetent or unfit employee was the proximate cause of the plaintiffs injuries. Proximate cause consists of two elements: cause in fact and foreseeability. To establish proximate cause, a plaintiff must prove that the employees tortious conduct was reasonably foreseeable. In addition, the plaintiff must prove their injuries were caused by employment of the incompetent or unfit employee, and their injuries were related to the employment of the incompetent or unfit employee.17
One interesting case illustrates how these legal theories are applied in the workplace. The Plaintiff, Mrs. Scott, was an 80 year old female who came to visit her infirm older brother at the Defendants establishment, a nursing home on the morning in question, she arrived at 5:30 a.m. Although she had been asked to restrict her visitation to regular visiting hours, she normally visited at odd hours. That morning, an unlicensed nurse employee attempted to prevent her from visiting her brother. He allegedly hit her on the chin, slapped her down and pinned her to floor with his knee on her chest. She sued alleging negligence and gross negligence in hiring an unlicensed nurse employee.
The jury found for the Plaintiff on both grounds, awarding her $35,000 in actual damages and $200,000 in punitive damages. The El Paso Court of Appeals affirmed the jurys finding that the nursing home had a duty to exercise reasonable care in the selection of its medical staff. The Court drew an analogy to the tort of negligent entrustment. Negligent entrustment places a duty on an automobile owner to determine the driving competency of the potential driver of the car. The Court upheld the jurys verdict that the nursing home was negligent and grossly negligent in hiring an unlicensed male nurse who assaulted an elderly visitor. Applicants for a nursing license may be rejected if they have been convicted of felonies, crimes of moral turpitude, or there is a finding of lack of fitness to practice by reason of mental health that may result in injury to patients.
The nurse in this case had 56 prior convictions for theft. The convictions were for crimes of moral turpitude. Aggravated assault on a female committed by a male involves moral turpitude; and the Court found this to be most assuredly so in this case since the female assaulted was 80 years of age! The court found it reasonable to anticipate that a man of proven moral baseness would be more likely to commit a morally base act on an 80 year old woman. The Court opined those fifty-six convictions for theft was some evidence of mental aberration. 787 S.W.2d at 496. The court also affirmed the jurys finding that the nursing home was grossly negligent in not requiring the nurse to present a nursing license and in failing to verify employment application information during the hiring process. The court found the home consciously jeopardized the health, welfare and safety of patients and visitors by making it possible for a mentally and morally unfit nurse to create a dangerous situation.
Duty to Warn of Potential Danger in a Particular Project
This duty to warn was illustrated in an unfortunate incident involving an American photographer assigned to photograph a hotel in Juarez, Mexico. The photographer, Mr. Gutierrez, was employed by a newspaper and sent on assignment to Mexico shortly after hire. After his arrival at the hotel, he was kicked, beaten and accused of being a DEA agent by the Juarez hotel owner. His life was threatened and after a lengthy confrontation he was left in a desert area to make his way back to El Paso without transportation, money, camera equipment or the sought after photographs. The photographer alleged that prior to departure, he was not warned by his supervisor about a story published by the newspaper. The previous publication suggested the Juarez hotel owner was a major drug dealer. The photographer sued, alleging the newspaper failed to warn of the danger associated with the assignment which was created by prior newspaper stories about this alleged drug czar.18
The court found a duty was owed to one assigned to a particular task where a potential danger existed because of prior conduct of the party making the assignment. The photographer was sent to the hotel wearing a press pass that identified him with the paper without any warning about the previously published article. The Court found this created an unreasonable risk of harm to the employee, which was reasonably foreseeable. Who could not anticipate some possible harm in sending a photographer to the front door of a drug czar, labeled as such by the employer? The summary judgment was reversed and the case remanded for trial.
While these cases illustrate the application of legal theory, many employers demand practical guidance for the realities of todays workplace. Employers may consider preventative measures and assess their ability to decrease the risk of liability for acts of workplace violence.
Preventative Measures That May Reduce Workplace Violence
1. Carefully screen job applicants. Conduct in-depth interviews of all applicants. Consider adopting a uniform policy of obtaining the applicants written permission to obtain all available criminal and public records. Consider a requirement that applicants be required to sign releases that authorize in-depth background and reference checks. The releases should relieve the employer and all persons cooperating with the prospective employer from any liability associated with these checks. Employers may substantially decrease the risk of negligent hiring and/or retention allegations by conducting thorough reference and background checks. These information-gathering efforts are often hindered by reluctance on the part of prior employers to provide information due to post-employment retaliation con cerns. Employers must verify that applicants have the required license and credentials for the job.
2. Consider testing applicants for employment. Offer post-offer pre-employment medical examinations that comply with the American with Disabilities Act to screen job applicants.
3. Provide adequate workplace security. Control access to the workplace. Require all visitors to check in with a receptionist or front desk and be announced. Consider external lighting, access cards, alarm systems, mandatory car registration for employees and visitors, surveillance cameras, and security personnel. Minimize cash kept on hand and check on late night employees. Employees should be advised of the actual or potential existence of surveillance cameras to eliminate any expectation of privacy.
4. Provide training and instruction. Train employees to effectively deal with medical emergencies, bomb threats, criminal conduct, and violence in the workplace. Written plans for dealing with emergencies must be artfully drafted to avoid any allegation of inadequate preparation. Human resou rces personnel should be trained to recognize and report potentially dangerous situations. Dangerous situations should not be responded to with well lets see what happens. Personnel should also be trained to provide appropriate referral to medical, psychological and religious resources.
5. Review personnel policies. Incorporate language describing employer search of company cars, file cabinets, lockers, offices, desks, credenzas and other locations where firearms or weapons may be kept. Ensure the policies inform all employees of areas that may be searched. Avoid an expectation of privacy that may prevent a search, or give rise to an invasion of privacy claim. 6. Warn of Potential Violence. Inform and warn employees, in an appropriate manner, about threats of violence or crisis situations. Be careful not to defame any person thought to be a potential source of workplace violence. Management employees should be accessible to employees during a crisis.
7. Performance Reviews of Management. Routinely review and honestly assess the performance of supervisors and managers. Determine if their management style is abusive or excessively authoritarian. Reward by promotion, provide proper remedial training, counsel and utilize progressive discipline to encourage proper management skills. Fire rude dog managers.
8. Encourage Physical Fitness. Encourage physical fitness or exercise programs to allow employees to blow off steam, reduce stress and relieve tension. At a minimum, the employees may be encouraged to walk outside at lunch or during breaks in cool weather.
9. Establish and Enforce A Concealed Handgun Policy. Explore legal options and the risks particular to the industry and locale with legal counsel.
Workplace violence is a concern of every employer. While many of the causes of workplace violence are difficult to control or eliminate, an employer may be able to take steps to avoid violence. Preventative steps include proper handling of employee terminations, management training, reasonable precautions and common sense. To maintain a healthy, safe and productive work environment and avoid tort liability, employers must consider reasonable steps to reduce the risk of violence.
This paper is for general information only and is not intended to provide a legal opinion or legal advice. For advice about specific legal questions, please retain an attorney.
Sharon M. Schweitzer is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization. She is the principal in the Law Office of Sharon M. Schweitzer, P.C. in Austin, Texas. Sharon received her undergraduate degree from the Ohio State University and her law degree from South Texas College of Law. Sharon is the Immediate Past Chair of the Labor & Employment Law Section of the Travis County Bar Association. She is a frequent speaker and has authored numerous articles on labor and employment issues.
ENDNOTES
1. Vicki Vaughan, More Companies are Beefing Up Security; A Spate of Violent Incidents in the Workplace Has Turned Managements Attention to Safety Measures, Orlando Sentinel, Aug. 27, 1993.
2. Andrew Julien, Connecticuts On-The-Job Fatalities Down in 93, Hartford Courant, Aug. 19, 1994.
3. Danielle Fouquette, Death Stole Moms Chance to Witness Sons Success, Los Angeles Times, July 4, 1994.
4. David Silverman, Mystery in Palantine, One Year Later, Seven Slayings Still Unsolved, Chicago Tribune, Jan 9, 1994.
5. Linda Lynwander, Wonderplace Violence: Learning the Warnings, N.Y.Times, Oct. 10, 1993.
6. Chiapuzio v. BLT Operating Corp., BNA Daily Labor Reporter No. 150, at D-1 (Aug. 6, 1993).
7. Group Urges Proactive Steps to Reduce Workplace Violence, BNA Daily Labor Reporter No. 172, at D-12 (Sept. 8, 1993).
8. Vicki Vaughan, More Companies are Beefing Up Security; A Spate of Violent Incidents in the Workplace Has Turned Managements Attention to Safety Measures, Orlando Sentinel, Aug. 27, 1993.
9. Vicki Vaughan, More Companies are Beefing Up Security; A Spate of Violent Incidents in the Workplace Has Turned Managements Attention to Safety Measures, Orlando Sentinel, Aug. 27, 1993.
10. Violence in the Workplace Costs Business Billions, Reuters European Business Report, Sept. 5, 1993.
11. Deerings West Nursing Center v. Scott, 787 S.W. 2d 494 (Tex. App. El Paso 1990, writ denied).
12. Restatement (Second) of Agency 213.
13. Restatement (Second) of Torts 282.
14. Exxon Corp. v. Tidwell, 867 S.W. 2d 19 (Tex. 1993).
15. Texas & Pacific Railway Co. v. Hagenloh, 247 S.W. 2d 236 (Tex. 1952).
16. Estate of Arrington v. Fields, 578 S.W. 2d 173 (Tex. Civ. App. Tyler 1979, writ refd n.r.e).
17. Deerings West Nursing Cen. v. Scott, 787 S.W. 2d 494 (Tex. App. El Paso 1990, writ denied).
18. Gutierrez v. Scripps-Howard, 823 S.W.2d 696 (Tex. App. El Paso 1992, writ denied).