Unfortunately, headlines of tragic acts of violence in the workplace continue – and it is a trend that is not abating. The Occupational Safety and Health Administration estimates that approximately 2 million workers are victims of workplace violence each year and a 2014 Census of Fatal Occupational Injuries reported 749 deaths were due to violence in the workplace. When workplace violence happens the first question many ask is, “Could it have been prevented?” The second question is, “How?” Both questions raise legal ramifications for employers.

Take the 2013 Washington Navy Yard shooting as an example – the shooter’s employer is faced with at least eight lawsuits by victims and their families over the deadly mass shooting based largely on allegations that the employer was negligent. The question there is whether the employer could have foreseen that the shooter would commit murder and accordingly, should they have pulled his security clearance? In that case, the shooter had an incident a month earlier in which he demonstrated mentally unstable behavior during a business trip that did not involve threats of violence. He also had numerous prior arrests that did not result in convictions. With such knowledge, was the employer required to do anything? If so, what should the employer have done? This first question is currently before the court to be decided on the employer’s motion to dismiss alleging it had no indication that the shooter might turn violent and that such conduct was not foreseeable.

Employers are often left with no easy answers. What can they do to predict or prevent violent acts without imposing on another employee’s rights? What if the conduct that is arousing a concern stems from an employee’s psychiatric disability – does an employer need to accommodate the employee or can they terminate the employee for the threatening conduct?

What Protections Do Employees Who Make Threats of Violence Have?

In recent years, the National Labor Relations Board (NLRB) has ruled in certain instances that provocative work-related speech is protected concerted activity under the National Labor Relations Act. For example, in June 2014, the NLRB ruled that a non-union car salesman’s speech to his manager was protected even though in the course of complaining about his wages, the employee shouted personally reprehensible profanities, including words such as “a—hole,” and then stood up, pushed his chair aside and told the manager that “he would regret it” if he fired the employee. Accordingly, an employer could risk a violation of the National Labor Relations Act if it takes action against an employee for such provocative speech.

In addition, generally speaking, the Americans with Disabilities Act (the “ADA”) protects an employee who engages in conduct resulting from a psychiatric disability because the conduct is part of the employee’s disability. Thankfully, recently in Mayo v. PCC Structurals,^[1] the Ninth Circuit recognized an exception to this well settled precedent. In that case, after making allegations that his supervisor had bullied him, the plaintiff began making threatening comments indicating that he felt like “coming down [to PCC] with a shotgun an[d] blowing off” the heads of the supervisor and another manager, that he planned to “take out” management and that he wanted to “bring a gun down [to PCC] and start shooting people.” The plaintiff acknowledged to his employer that he “couldn’t guarantee” that he would refrain from acting out his threats. The employer suspended him and barred him from the company property. Following this, the plaintiff was voluntarily admitted to a hospital and then took a medical leave of absence from work. After a couple months, his psychiatrist cleared him to return to work recommending that he be given a different supervisor as an accommodation. The employer terminated his employment instead. The plaintiff alleged disability discrimination. The Ninth Circuit affirmed summary judgment in favor of the employer, holding “[a]n employee whose stress leads to serious and credible threats to kill his co-workers is not qualified to work for the employer, regardless of why he makes those threats.” Accordingly, he is not a qualified individual entitled to protection under the ADA. The court explicitly recognized the conundrum discussed above:

The [ADA] does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge — in jeopardy of violating the [ADA] if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The [ADA] protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one.

Unfortunately, the holding in this case is narrow and the opinion acknowledged that its holding is premised upon the “extreme” and particular facts of the case.

How Can an Employer Be Liable for the Violent Acts of its Employee?

The Occupational Safety and Health Act of 1970 (OSHA) requires employers to furnish employment and a place of employment which are free from recognized hazards that cause or are likely to cause death or serious physical harm to employees, including hazards such as violent behavior by coworkers. Accordingly, an employer may be found to have violated OSHA based on an act of workplace violence.

In addition, as set forth above with respect to the Washington Navy Yard case, an employer may be sued based on claims of negligence whether for negligent supervision, negligent retention or negligent hiring. In the case of negligent hiring, the question is – did the employer at the time of hiring the employee have reason to believe (or could it have determined by reasonable investigation) that the employee was dangerous and hired him or her anyway? With respect to negligent retention and supervision claims, the inquiry is – did an employer learn of an employee’s dangerous propensities after he or she was hired and not take appropriate action to prevent harm to others? In June 2013, a Los Angeles County, California jury issued a verdict of almost $58 million on a claim that a company negligently hired and trained a security guard who beat a patron with a baton while he was working security at a bar causing traumatic head and brain injuries.

Moreover, an employer may be held liable for violent and dangerous acts of its employees under the theory of respondeat superior where an employee’s actions are committed when acting in the course and scope of his or her employment.

What Can and Should an Employer Do?

Employers should consider doing everything they legally can to prevent workplace violence both before and after any threat of violence arises.

Before any threat of violence arises, employers should consider designing and implementing a clear workplace violence policy with zero tolerance for threats or acts of violence. Any such policy should provide clear reporting requirements. In addition, employers should consider developing a response plan before any threats or actual violence occur and should consider implementing consistent, firm discipline for all violations of the policy.

Further, employers should consider implementing pre-employment screening by way of criminal background checks and should contact an applicant’s prior employers to get information regarding their prior employment. Such a check may reveal that an employee has a violent history or violent tendencies before they ever step into the workplace. However, employers need to be careful that they comply with all applicable laws with respect to such checks. Both state and federal laws can limit the criminal background checks that can be done for certain positions.

Employers should also consider implementing training for their employees and managers regarding their workplace violence policy, how to recognize potential signs of violent behavior, how to report concerns regarding threats of violence or actual violence and how to take safety precautions to protect themselves. In some states, such as California, employers are required to provide their supervisors with training regarding workplace bullying, which may include information regarding workplace violence. Employee assistance programs for those struggling with mental disorders can be another avenue of assistance and prevention.

In the event that there are actual credible threats of violence or acts of violence, an employer should consider not only taking appropriate disciplinary action but, in the appropriate circumstances and where state law provides for it, seeking a workplace violence restraining order against that individual. Restraining orders, increased awareness for employees as to what and whom to report and increased security at the worksite can all be important factors to mitigate escalating threats when they do arise.

Conclusion

Workplace violence will continue to be an issue that haunts our minds when we once again hear of it through shocking headlines with tragic results. But there are steps that employers can and should consider doing to mitigate those risks.

Notes:

^[1] 795 F.3d 941 (9th Cir. 2015).