A large portion of my practice is concentrated in the area of workplace violence prevention. When I mention this at bar events and cocktail parties, it must conjure up images of mass shootings and SWAT teams. However, workplace threats are defined by the Workplace Violence Research Institute as any act against an employee that creates a hostile work environment and negatively affects the employee, physically or psychologically. Such threats may be a precursor to violence and much of my practice is focused on advising clients how to respond to such threats and prevent escalation.
“Not on my watch!”
The statistics are staggering. According to the United States Department of Labor’s Occupational Safety & Health Administration (OSHA), each year, nearly 2 million Americans report they are the victims of workplace violence.1 As with most crimes, many more incidents of violence probably go unreported. OSHA does not have a specific guidance for workplace violence, but under its “General Duty Clause,” employers are obligated to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to the employees. 29 U.S.C. 654(a)(1). Volatile or unstable people should be considered a recognized hazard and employers should ensure that their employees are safeguarded from them.
Aside from the obvious problems that stem from a volatile workplace, threats, intimidation, coercion, harassment and physical assault in the workplace can prove costly for the employer because of resulting litigation, damage control, and lost productivity. So what can employers do?
Determine if you are at risk.
Some businesses are more prone to threats in the workplace. What comes to mind are abortion clinics, social services agencies, medical laboratories, and law firms. Businesses that are engaged in controversial work, regularly come in contact with people suffering from mental health issues, or perform duties that others may find upsetting, are particularly susceptible to being targeted. California’s Division of Occupational Safety and Health (Cal/OSHA) has identified the following risk factors for workplace violence:
- Do your employees have contact with the public?
- Do your employees exchange money with the public?
- Do your employees work alone?
- Do your employees work late at night or during early morning hours?
- Is the workplace often understaffed?
- Is the workplace located in an area with a high crime rate?
- Do your employees enter areas with a high crime rate?
- Do your employees have a mobile workplace?
- Do your employees deliver passengers or goods?
- Do your employees perform job duties that might put them in conflict with others?
- Do your employees perform job duties that could upset people (e.g. confiscating property, denying a benefit, terminating child custody)?
- Do your employees deal with people known or suspected of having a history of violence?
- Do any of the employees have a history of assault, verbal abuse, harassment, or other threatening behavior?
The presence of one or more of these factors is an indicator that there may be a potential for violence.2 Evaluate your pre-employment screening processes and termination practices to further safeguard the workplace.
If you’ve determined your employees may be at risk, there are things you can do to prevent threats or an escalation.
- Use the law.
Many states are enacting laws specifically to address the growing problem of violence in the workplace. In California, the Workplace Violence Prevention Act (WVPA) allows an employer to obtain a restraining order protecting all or some of its employees from threats posed by an individual. The threat presented must be a credible threat of violence to fall within the WVPA. If the conduct does not rise to that level, it may still constitute harassment for which the individual employee or employees may personally request a restraining order. Although the employer is not the requesting party in that situation, cooperation by the employer will be to its benefit. For example, if an employee is harassed at work by a stalker, the employer may be limited in the actions it can take in the absence of an order. But once an order is in place, the employer can rely on that to exclude the stalker from the premises or report the continued harassment of the employee to the police.
- Have a psychological assessment done.
When mapping out a plan of action to prevent workplace violence, input from a threat assessment consultant will be invaluable. Turning to a trained psychologist, who can evaluate the conduct and communications made by the offender, will help guide your legal strategy. Is the offender someone who will respond positively to a cease and desist letter? Is the offender someone who is “all talk and no action” or someone who is on the brink of exploding? Getting this valuable assessment will help you formulate a plan and gain some control over the situation.
- Ensure you have the necessary safeguards in place.
Even if you are able to get a restraining order, that is just a piece of paper. It is not a substitute for security measures. Ensure that the workplace has security cameras, alarm systems, security personnel, panic buttons, and any other measures that you, your lawyers, the psychologist and the security consultant deem appropriate. Work with the lawyer, psychologist and security consultants to formulate a message to the employees. You want to ensure that employees are informed without causing panic, and reassured of their safety without inviting complacency. It is a fine balance, but a team of experienced professionals can help you achieve it.
No one can deny the presence of violence in our society. And no employer should take the security of its workplace for granted. With the right tools, every employer can provide a safer place for its employees to thrive.
Ruby Kazi is a partner at McManis Faulkner whose practice focuses in business litigation, with an emphasis in protecting her clients from threats within or from outside their organizations. She brings a high level of passion and dedication to her cases and takes pride in the relationships she develops with her corporate clients.
 Occupational Safety and Health Administration, U.S. Dept. of Labor, Publ’n No. OSHA 3148-04R 2015, Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers (2015).