An estimated 2 million American workers are victims of workplace violence each year, costing businesses billions of dollars annually in impaired productivity, employee turnover, security measures and legal costs, according to the U.S. Dept. of Labor. Juries hold employers responsible for these incidents with increasing frequency and in staggering amounts. Recently, in Yowan Yang v. ActioNet, Inc, a California helpdesk technician was awarded nearly $7.4 million in damages following a workplace violence incident where a coworker grabbed the technician's neck and choked him.
These types of cases are not limited to California or to violence committed by coworkers. Last year, in Integra Health Mgmt., OSHA cited a Florida employer for failing to provide a reasonably safe workplace in violation of OSHA's General Duty Clause after one of its health care service coordinators was fatally stabbed during an at home visit with a patient.
While an individual OSHA citation carries maximum penalties, the citations can carry much greater implications for employers. Several courts have held that a willful violation of an OSHA regulation is evidence of a breach of the standard of care owed to employees under state law. Thus, in these states, an OSHA citation could affect workers' compensation exclusivity and allow an employee to sue the employer for the injury in state court.
OSHA's Recommendations for a Workplace Violence Program
The first step in reducing the risk of and preparing for workplace violence incidents is to develop a comprehensive, written workplace violence program. If an incident of workplace violence does occur, one of the first things OSHA will do is determine whether the employer has an adequate written workplace violence program in place. The program should offer a blueprint of the various measures the employer will take to prevent and respond to workplace violence. According to OSHA, a written workplace violence program should include, at a minimum:
- A written workplace violence policy statement for employees.
- The assignment of oversight and prevention responsibilities to appropriate personnel.
- A workplace violence hazard assessment and security analysis, including a list of the risk factors and hazards identified in the assessment and how the employer will address the specific hazards identified.
- An employee questionnaire to obtain input on potential risks and vulnerabilities.
- Appropriate employee training on the workplace violence program and policy.
- A training program, including a written outline and/or lesson plan.
- Development of workplace violence controls, including engineering and administrative controls, to prevent incidents.
- A recordkeeping system and guidelines.
- An annual review of the workplace violence program, including an updated hazard assessment each year.
- Procedures, policies and responsibilities to be implemented in the event of a workplace violence incident, including investigation procedure.
Developing a Workplace Violence Program and Policy
A written workplace violence program is more comprehensive in scope than a written workplace violence policy statement, which is a component of the program. The workplace violence policy is an important part of the workplace violence prevention program because it summarizes what is and is not expected of employees, and explains how the standards of conduct will be enforced.
An employer drafting a written workplace violence program and policy should evaluate the workplace and ascertain what makes sense in that workplace's particular context. Steps in evaluating can include:
- Reviewing any history of violence in that particular workplace, including employee questionnaires, OSHA 300 logs, incident reports and health and safety records.
- Evaluating the history of violence in similar places of employment.
- Visually inspecting the workplace to identify risks associated with the design, layout and administrative procedures.
- Reviewing unique risk factors in your workplace (e.g., workplace is located in an area with a high crime rate, public access to workplace is not limited or controlled, employees are working late night or early morning hours).
Once the workplace is evaluated and factors identified that may increase the risk of violence, employers can implement engineering and administrative controls as a part of the workplace violence program. This includes workplace design factors: for example, limiting the number of entrances, using access cards or keys to control access to the building or certain areas of the building, using adequate exterior lighting and installing video surveillance. Administrative controls can include drills for responding to incidents and training employees in nonviolent alternative dispute resolution, how to identify indicators and signals of potential violent episodes and how to respond to incidents of workplace violence.
Once an employer develops a written workplace violence program and policy, consistent and regular employee training and enforcement of the policy are key elements for success. A comprehensive workplace violence program and policy can only go so far if management does not actually implement the program and consistently enforce the policy.
Meghan N. Cox is a labor and employment attorney at Burr & Forman LLP (Birmingham, Ala.). She counsels employers in both state and federal investigations with respect to any and all labor and employment matters arising in the workplace.