Labor & Employment Law Articles
Avoiding Workplace Violence
The statistics are startling: each year almost one million people are injured in the United States as the result of violence taking place in the workplace. Sixteen percent of all violent crime in this country occur in the workplace. Workplace violence is the leading cause of fatalities in the workplace for women and the second leading cause of death for men in the workplace. An average of twenty employees are the victims of homicide in the workplace each week. More than half of all workers fatally injured on the job in the New York Metropolitan area die as the result of a violent act, the highest rate in the country and double the national rate.
Clearly, workplace violence is a major concern for employers. Employers who wish to establish a workplace violence prevention program should make sure that the following elements are included:
- Pre-employment screening. A background check to determine if there are any relevant prior criminal convictions should be performed. However in performing such an investigation, it is important to bear in mind that under Title VII of the Civil Right Rights Act, employment decisions based on arrest records are unlawful since they have a disparate impact on protected groups. Similarly, pre-employment inquiries as to the mental disability of a job applicant are generally prohibited under the Americans with Disabilities Act. However, an employer may screen out applicants who pose “a direct threat to the health or safety of other individuals in the workplace”. A “direct threat” is defined as a “significant” risk to the health or safety of others that cannot be limited by reasonable accommodation. An employer must meet very specific and stringent requirements to establish the existence of a direct threat. The assessment of risk must be based on objective medical or other factual evidence regarding a particular applicant. In addition, the employer must consider whether the risk can be eliminated or sufficiently alleviated by reasonable accommodation.
Checking with prior employers should be done even though it may prove to be a frustrating experience. Most employers, in order to avoid exposure to defamation suits, will provide only a neutral reference verifying only dates of employment, classification, and salary levels without making any positive or negative comments about the employee’s job performance. However, employers may be more willing to disclose information if the prospective applicant has signed a release toward the former employer.
- Training. Managers must be trained in appropriate ways to handle employee terminations and discipline. In addition, they must be trained to spot employees who are potentially violent so that preventive action can be taken. Such preventive action may include referral of an employee to an employee assistance plan (EAP).
- Establishment of Worker-Management Safety Committees. Avenues of communication should be opened to allow workers to suggest methods of improving security and warn of potentially violent situations.
- Creation of Clear Rules Relating to Employee Conduct. The employer should promulgate a written policy of zero-tolerance for workplace violence, verbal and nonverbal threats, and related conduct.
- A Comprehensive Security Plan. Such a plan should include a procedure for dealing with incidents; the assignment to an individual of responsibility for maintaining security in the workplace; and establishing a liaison with law enforcement representatives.