by Renee Mielnicki, Esq.
Watching the news lately is surreal. The recent attacks in Paris and San Bernardino have a lot of us thinking both personally and professionally about the issue of guns and violence. In Allegheny County, PA, the lines at the Sheriff’s Office are now an hour wait at times for people applying for a license to carry a concealed firearm. Something tells me this is not the only region experiencing this issue. Despite anyone’s personal opinions on the subject, many are reacting to violence by getting a gun for protection. I have to say that I am at the point where I don’t blame anyone for reacting this way. However, our society may start resembling the wild, wild west if this is how we continue to react. There’s an old saying that goes, “violence breeds violence.” Accidents happen. People get scared and may overact with a gun. But, perhaps it’s getting to the point that maybe there is no other way. I have mixed emotions on the subject as I am sure many of you do. These issues can create some real questions for employers and I’ve been talking to them more and more about the subject these days.
For the last few years, the discussions have usually gone like this: “We don’t allow guns anywhere in the workplace due to the related safety and liability issues.” Now the conversation is changing to: “Perhaps we should be allowing certain employees to have guns in the workplace. Otherwise, if someone comes in here with a gun, we are defenseless targets.” Remember Sandy Hook Elementary School in Connecticut? I still can’t think about that one without feeling ill. Some analysts say that these “gun free zones” are targets for unstable people wishing to do someone harm. So then the question becomes, what is the right thing for an employer to do, both from a safety and a legal perspective? Very good question, isn’t it? While I may not have a definitive answer, I do have some thoughts on the issue that I’d like to share. Let’s begin with the legal issues associated with the matter.
There are several ways that liability can attach to an employer for workplace violence, some of which I can only comment upon briefly since I am no expert in the area. The Occupational Safety and Health Act (OSHA) would be the first concern. Under the General Duty Clause of OSHA, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” The courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. An employer that has experienced acts of workplace violence, or becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, would probably be on notice of the risk of workplace violence. While I am not overly familiar with OSHA, this scenario sounds a lot like the general negligence standard of care that I will explain later in this article.
Workers’ compensation is another area of the law that workplace violence could touch. Again, not my area, but I do know that unless some type of exception applies, employees injured in the workplace cannot sue their employer for their resulting injuries. Instead, the employee injured at work has the exclusive legal remedy of workers’ compensation. Notice I said, “unless some exception applies?” Employees injured as the result of workplace violence may be able to sue the employer directly, depending on state law. In Pennsylvania one such exception is known as the “personal animus/third party attack.” The courts, of course, created this exception and have said that attacks upon an employee that occur for reasons that are purely personal to the assailant are not covered by workers’ compensation. To overcome exclusivity, the employee would have to allege that his attack at work by a co-worker occurred for purely personal reasons. If such is the case, the employee may be able to argue that the Workers’ Compensation Act should not limit his damages and the employee can then sue the employer directly for his resulting injuries. It’s my understanding that this is difficult to do, but not a chance I’d like to take as an employer.
Negligence is the next legal theory under which an employer can be liable for workplace violence, whether it’s by an employee who has overcome the workers’ compensation exclusivity provision, or a third party that is injured as the result of workplace violence. Negligence is known as a common law legal theory. Common law means the principle derives from judicial precedent (i.e. law developed by judges) rather than statutory law (the legislative process by which written laws are passed). Negligence has four elements to it: (1) duty; (2) breach of that duty; (3) causation; and (4) harm or damages. The principle of negligence imposes a duty upon employers to protect their employees from known dangers. The same is true of business owners. They must protect their customers from known dangers as well. If an employer/business owner breaches this duty of care and an employee or customer is harmed as a result of workplace violence, then the employer can be held liable under the theory of negligence. Let’s take a look at how an employer may breach the duty of care.
Negligent hiring is one theory. Again, employers must protect their employees and customers from employees who the employer knew or should have known had a propensity for violence. Employers wishing to minimize these types of claims should do criminal background checks that comply with applicable laws. Employees with certain criminal convictions involving acts of violence should not be hired. If they are, an employee or customer injured as the result of workplace violence could argue the employer knew or should have known that the employee may hurt someone based upon the criminal record discovered through the hiring process. Plaintiff’s lawyers can also argue that failure to do criminal background checks is negligent hiring. If an employer doesn’t discover known dangers that could have been discovered through a reasonable background check, it can be argued that the employer breached the duty of care if someone is hurt by an act of workplace violence.
Negligent supervision and negligent retention are other legal theories under which employers can be held liable for workplace violence. These theories work something like this. Remember the standard of knew or should have known about the employee’s propensity for violence? Employers who keep or retain employees with known propensities for violence can also be on the hook if that employee injures someone at work through an act of violence. Why? Because it’s foreseeable that the employee may cause harm to another by a violent act. If it’s foreseeable, or the employer knew or should have known that an act of violence might occur, than the employer breaches their duty of care to prevent known dangers.
I often analyze potential liability for clients who call me when they discover they have a registered sex offender on their payroll. I begin by asking the employer who that employee works with and if the sex offense involves a female or a child. I also like to know how long ago the conviction occurred and if the person has been convicted of any other violent act since. If the sex offender was convicted of a sex act involving a child 15 years ago and is working at night as a janitor or working in a shop with all men, to me, it’s not likely that this sex offender is going to commit a sex offense in the workplace. It then becomes the employer’s decision whether to keep the sex offender or not. The case is much different if the offender is convicted of an offense relating to a female and works with several females, including in areas with little employer supervisor. Under that fact pattern, you could see how it would be foreseeable that the employee might commit a sex offense involving a female in the workplace.
Here’s one more scenario where I could see potential liability: Retaining an employee after the employee had threatened to physically harm another employee. I have this debate with employers all the time. In fact, a few times I have heard, “well, he didn’t mean it,” or “that’s the atmosphere here.” Employers retaining employees who threaten physical harm to another employee proceed at their own risk under the knew or should have known negligence standard.
I’d like to end this article with how I began. What do employers wishing to minimize liability for workplace violence do, whether they wish to prohibit weapons in the workplace entirely or allow them to some degree to protect their employees from the crazies of the world? Don’t forget the legal standard. You should have it by now since I have repeated it over and over and emphasized it in italics. Acts of violence must be foreseeable and the employer must know or should have known that the act may occur. When hiring, employers should conduct reasonable criminal background checks that comply with applicable state and federal law. Generally, these checks should be performed on all applicants post-offer, pre-hire as part of the hiring process. They should be required of all applicants. They must somehow be related to the job. In addition, if there is a conviction that suggests the person is likely to commit a violent act, they should not be hired. Employers can also conduct reference checks as well with prior employers. Lastly, employers should also do the following:
- Have a workplace violence policy that says the employer has zero tolerance for violence. The policy should set forth and describe any weapons that are banned from company property. It should also encourage employees to report incidents of violence so the employer can investigate and remediate situations involving violence. Employers wishing to ban firearms entirely will have to check their own states law. Some states have passed laws allowing employees who have a license to carry to keep the firearm in a locked glove box in their own vehicle parked in the employer’s parking lot.
- Employees and management should be trained on the issues associated with workplace violence. The training should again remind employees to promptly report any acts or threatened acts of violence.
- If an employee engages in or threatens an act of violence at work, termination should be considered due to the potential for negligent retention claims.
- If the employer becomes aware that the employee has engaged in certain acts of violence outside of the workplace that suggest the employee may do similar harm in the workplace, consider termination as well.
If you are an employer wanting to allow weapons at work to a certain degree, this is a delicate balance between your potential liabilities and protecting yourself from others who may want to do you harm. There’s lots to consider there. Imagine yourself having to terminate an employee who has been authorized to carry a firearm in the workplace. That’s scary, isn’t it? Or, what if that same person whom you had no reason to suspect originally of violent behavior and allowed to carry at work later engages in an act of violence. Or, an employee possessing a gun gets into a brawl with another employee at work and then uses the gun out of rage. All possibilities. But, if you are willing to take these sorts of safety risks, remember the associated legal ones as well and take some preventive steps. You would need to have some really tight screening processes both during the hiring phase and possibly thereafter. For any employee allowed to carry a firearm in the workplace, I would make sure that employee has no criminal record that suggests a propensity for violence. I’d also make sure that employee has a current license to carry a firearm. I’d also want proof they lawfully bought the gun they are carrying. I’m no expert, but I think part of either the buying or licensing process includes some type of check to ensure the applicant has had no Protection from Abuse Orders or mental health commitments, both of which would be indicators of the potential for a violent act in the future. I may also want to make sure of these things throughout the employment relationship. And lastly, if you become aware of any act that occurs either inside or outside of the workplace that suggests harm may occur in the workplace, act promptly by either disallowing the person to continue to have a gun at work or terminating the employee, depending on the facts and circumstances.
Notice that two themes run throughout all of the laws and liabilities discussed above. First, safety is a legal duty of the employer to both its employees and its customers. And second, if an injury occurs for which the employer can be said to have known or should have known was likely to occur, the employer may then be liable.
If you have questions about workplace policies, please contact us by sending an email to HRHelpline@eastcoastrm.com. We look forward to helping you.
Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this Web site do not create an attorney-client relationship between East Coast Risk Management or our employment law attorney and the user or browser.