Workplace Violence — Tips for Minimizing Liability Risks

The specter of workplace violence is certainly one of the top concerns that keep employers awake at night. Workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at work, ranging from threats and verbal abuse to physical assaults and even homicide. Violence is the third-leading cause of fatal occupational injuries in the U.S. In 2019, 761 of such fatalities were cases of intentional injury by another person.

Employers should consider the following strategies to prevent and/or reduce violence at work and to minimize potential liability:

1. Screen Job Applicants. Job applications, reference checks, criminal background checks, drug and alcohol testing, and interviews can alert employers to potential problems. Please note, however, that employers must comply with the federal Fair Credit Reporting Act and other similar state law requirements regarding the procurement of background checks and credit reports by third parties. Likewise, employers should be aware of (and follow as applicable) “ban-the-box” laws that place restrictions on pre-employment criminal inquiries and background checks.
2. Be Alert to Warning Signs of Potential Violence. Such warning signs may include: (i) verbal threats of physical harm; (ii) threatening actions; (iii) significant changes in behavior; (iv) a fixation with weapons; and (v) a history of violent acts. Significantly, supervisors and management should receive training with respect to recognizing the warning signs of potential violence.
3. Create, Disseminate, and Implement a Weapons Ban Policy. Employers should have a policy prohibiting weapons on company property, to the extent permissible under applicable state law. The policy should be posted on company bulletin boards as well as disseminated to the entire workforce. It should apprise employees of the consequences of violating the policy. Strict enforcement of a weapons ban policy will reduce the likelihood of serious workplace violence and help employers avoid expensive litigation.
4. Create, Disseminate, and Implement Reporting Procedures. Every employee should know where and how to report incidents of threats or violence. Employees should be instructed to contact Human Resources or other designated management personnel when they become aware of any threats or questionable behavior by co-employees, no matter how serious to be they perceive the threats or behavior.
5. Investigate All Reported Incidents. The employer should conduct an immediate and comprehensive investigation after receiving a report of violent or threatening behavior. Employers should have a clearly defined procedure when investigating threats of violence. Such procedures may include: (i) creating a threat-assessment response team; (ii) interviewing the informant and others who may have information; (iii) discussing the issues raised in the investigation with the alleged threatening employee; and (iv) interviewing the supervisor of the alleged threatening employee. Notes should be kept of all interviews and discussions. The entire investigation process, however, should be kept confidential to the greatest extent possible.
6. Take Appropriate Disciplinary Action for Policy Violations. When the employer’s investigation reveals that an employee’s conduct violated company policy prohibiting workplace violence, the employer should apply its disciplinary policies and procedures. The level of disciplinary action which should be imposed will depend on the circumstances. In some cases, notifying law enforcement may be appropriate.

As in all discipline situations, it is imperative that the employer’s policies and procedures are applied consistently and uniformly. If you need any assistance in evaluating current workplace violence policies and procedures or developing new policies and procedures, please contact your Foley & Lardner attorney.

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