When Employees Respond to Discipline with Violence

Posted: 02/03/2011
Melissa Fleischer, Esq.
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Employers need to understand and better prepare for violence in the workplace when they plan on imposing discipline on employees. Of course, this is especially true when management terminates employees or asks an employee to resign. There have been numerous recent cases in which employees respond with violence based on being disciplined, receiving a poor job performance review or being terminated.

How can employers be better prepared? Each instance of workplace violence has to be used as a lesson for employers. A lesson to be better aware of the warning signs of workplace violence. Employers also need to be better prepared by ensuring that they have well drafted workplace violence prevention policies as well as providing workplace violence prevention training to all of their managers. Such training will help familiarize the managers with the warning signs of workplace violence, inform managers of some possible resources within the workplace to assist employees that display warning signs of workplace violence and advise managers on methods to provide discipline that can help to avoid instances of workplace violence.

What are some of the consequences of workplace violence in a workplace? Of course there is the immediate consequence of the horrific loss of life and unnecessary violence they and their employees have to endure. In addition, there is the PR nightmare of being known as a company that failed to prepare for workplace violence and the appearance of your company on the evening news with police crime scene tape all around your workplace. But perhaps employers don’t understand the deeper implications that failing to prepare for workplace violence can have on them.

What deeper implications you ask. Well, first of all there is the possible liability under OSHA since all employers have an obligation under the general duties clause to provide a safe workplace for their employees. Specifically, under OSHA employers must provide a place of employment "free from recognizable hazards that are causing or likely to cause death or serious harm to employees."

But in addition, there is what is perhaps even more startling for employers, the fact that they can be held liable for the injuries caused by these instances of workplace violence under many creative theories of liability that plaintiff’s attorneys utilize.

First there are the negligent hiring theories of liability. What does this mean? This means for example that a good plaintiff’s attorney would argue that had your human resources department done their part to check this employee’s background prior to hiring the employee, you would have known that he had been fired from his prior job for an instance of violence or that he had prior criminal convictions. By failing to check his background, you were negligent in the hiring process and brought this dangerous employee onto your premises where there was a likelihood that he would be violent again. What kind of damages are we talking about in these cases? Damages that can be in the millions. One reason this is such a worthwhile claim for plaintiffs to allege is because they can be awarded punitive damages in addition to compensatory damages. This makes it very appealing as a claim for many plaintiff’s attorneys.

Then there are the negligent retention theories. This is where the plaintiff alleges that you the employer were aware of the disgruntled worker’s tendency for violence and for jumping off the deep end and yet you failed to discipline him when he worked for you and failed to terminate him. Thus, the theory goes that by retaining him without warning him to not continue to engage in discipline and by not getting rid of him, you subjected your employees to a person prone to violence and were thus negligent.

Either theory can lead to liability for employers. For instance, in Yunker v. Honeywell, Inc., (496 N.W.2d 419 (Minn. Ct. App. 1993)) an employee at Honeywell had been previously fired for strangling an employee. The employee served five years in prison and then when he got out he applied to work for Honeywell again. Honeywell hired him. The HR professional who hired the employee hired him knowing he had been terminated for this prior incident of workplace violence. Once the employee was rehired he engaged in numerous instances of harassing and threatening behavior toward co-workers and also became interested in a female co-worker. After she rejected his romantic advances toward her, he shot and killed the co-worker in her driveway outside of her house. The family of the victim sued Honeywell claiming both negligent hiring and negligent retention. The court rejected the negligent hiring claim because he was rehired as a janitor whose job had very little interaction with other employees. However, the court upheld the negligent retention claim on the theory that Honeywell had notice of the possibility of violence since the employee had harassed this woman at work and had painted a death threat on her locker door. She had complained to the company and they had done nothing. By failing to take action while continuing to retain him as an employee, the Court held that Honeywell had negligently retained the employee and they were held liable.

In another negligent hiring case, B&L Motor Freight was held liable for 4 million dollars for negligently hiring an employee who had prior criminal convictions even though he had stated he had none on his employment application. This employee had raped another employee. The court held that the employer should have checked his background for criminal convictions since he had access to interactions with others. Similarly, in a Goodwill Industries case, the employer was held liable for 5 million dollars when a 15-year old employee was raped and murdered by an employee with a criminal background. The employer had failed to do a background check on this employee.

What is the lesson for employers? In my mind it is simple, training. Training your managers and HR professionals to understand everything they need to know to prevent workplace violence. Your managers and employees need to be trained on the importance of conducting background checks as well as on how to recognize the warning signs of workplace violence. They also need to be trained on the importance of taking appropriate disciplinary action against employees for violent behavior they exhibit in the workplace.

In addition to employers learning to be better prepared for the possibility of workplace violence when disciplining employees, employers also need to be aware that harassment that is not dealt with can escalate and result in workplace violence.

Employers need to understand that when an employee complains about workplace harassment, the employer has a legal responsibility to respond to the complaint by undertaking an investigation and then taking prompt corrective action to stop the harassment. Failure on management’s part to respond promptly can lead to liability. Moreover, disciplining an employee after the employee has filed a harassment complaint can lead to claims of retaliation. Management should ensure that they respond promptly to all claims of workplace harassment and take prompt corrective action which can include discipline of the harasser, up to and including termination. Management should also provide training to all managers so that they understand what to do when they receive a harassment complaint, observe harassment in the workplace and/or have an employee that has filed a harassment complaint so they can better understand how to best avoid retaliation against the employee.

Hopefully, these recent deadly and unfortunate incidents of workplace violence will serve as a lesson to employers to ensure that they are better prepared to protect their workplace from incidents of workplace violence.

Thank you, for your interest in When Employees Respond to Discipline with Violence.