A preventative workplace violence strategy can be an important best practice.  As we’ve previously discussed in a post about what employers can learn when violence hits close to home, employers also should have a real strategy for the "during" and "after" of a workplace violence incident.  One common prevention tool popular among employers today is the Employee-Assistance Provider (EAP).  Considered by many to be an effective way to intervene before little troubles become big problems, EAPs have enjoyed increased popularity over the past several years.

The recent settlement by an EAP in a case involving a fatal workplace shooting may shine new light on just how much influence this type of service may have over your employees and how much risk you incur if you don’t set clear policies with your EAP. It should put employers on high alert about your EAPs policies on how they address and communicate referrals where violence is an issue.

The shooting in 2003 killed six employees in a Lockheed Martin plant in Meridian, Mississippi.  The suit was filed by Erica Willis, the daughter of one of the six victims.  The shooter worked at the Lockheed facility for 20 years before the shooting, in which he also took his own life. Willis filed suit not against Lockheed, the shooter’s employer, but against Lockheed’s EAP, NEAS, Inc.

The suit alleged that some of the employees who worked alongside the shooter had been complaining for months that their coworker had threatened them and used racial slurs in the presence of Black employees.  And, a year before the shootings, Lockheed told him that his continued employment would be contingent on completing a counseling program through NEAS. 

NEAS referred him to an affiliate, which cleared him to return to work after just three counseling sessions.  Later that year, he was attending a mandatory diversity training program when he walked out of the class without explanation.  He returned with a shotgun and a rifle. 

The suit claims that NEAS, Inc. (the settling party), failed to provide its affiliate with a full background for the referral.  Instead, NEAS is alleged to have stated only that the employee had "boundary/communication issues."

This case raises several interesting issues relating to violence at work. 

For one, the recent legislation signed into law in Florida, takes on new meaning in this context.  The State of Florida has a new law that prohibits employers from banning guns from their property.  Cautious employers have clear policies on the presence of weapons on company property, including employees’ cars in the company’s parking lot.  The Florida law that makes such a policy unlawful seems to be an invitation for disaster. 

It is also an unusual example in that the employer did not get sued–the EAP and its affiliates were the named defendants.  (The affiliate was dismissed early in the case).  Usually we counsel clients about workplace violence prevention in the context of suits for negligent hiring, retention, and training, property liability, and even the General Duty Clause of OSHA.  But this story evidences a whole new basis for liability if the employer fails to communicate how its EAP addresses employees with a proclivity for violence.  It’s not so far-fetched to imagine the EAP disclaiming all responsibility on the ground that it was simply following orders and pointing the proverbial finger at the employer who hired it.

And yes, it can happen to you.

Perhaps the single biggest error employers make when it comes to workplace violence is the mistaken belief that it "can’t happen to them."  Workplace violence is, and has been, in every type of workplace in cities and states across the country.  Fatal and non-fatal incidents occur everywhere and can occur at any time.  On average, 1.7 million workers are injured each year, and more than 800 die as a result of workplace violence.  There are no second chances when it comes to employee safety, so take the initiative to implement preventative practices before it’s too late.

The new Florida Gun Law would prevent employers from banning workers from bringing guns to work. To describe the legislation a “controversial” would be a gross understatement.

Advocates say the intent of the bill is to ensure that citizens’ constitutional right to keep and bear legally owned firearms within their vehicles. Opponents have raised concerns about the increased incidents of workplace violence (and the liability that goes with it). They also argue that they should have the right to set rules on their property. Some workplaces are exempt from the law, such as nuclear power plants, prisons, schools, and homeland security businesses.

The law puts Florida employers in a seemingly unwinnable situation. On one hand, all employers have an obligation to protect the health and safety of their workers under the Occupational Safety and Health Act (OSHA). Yet, they cannot prevent or eliminate a serious safety risk by banning guns in the workplace.

A study by the American Journal of Public Health found that workplaces that allow guns on the premises are roughly five times more likely to have a homicide than those who are not. It is easy to imagine how an angry employee would be more likely to commit an act of violence in the workplace if he simply had to go out to his car to get a gun. So it’s understandable that many Florida employers are staunchly opposed to the bill.

Although the law passed through both houses of the state legislature and was signed by the Governor, it will likely face a difficult challenge in court. Oklahoma passed a similar bill, which was promptly injoined by a federal judge on the ground that it violated federal OSHA laws.

And, while Florida businesses are concerned about the risks that the law may cause, Delaware employers are using the resources offered by the State to prevent workplace violence.

Delaware state government has reached out to Delaware employers to provide guidance in preventing and addressing violence in the workplace. The Delaware Corporate Citizen Initiative, in collaboration with the National Workplace Resource Center on Domestic Violence, published a Model Policy on Domestic Violence in the Workplace. The Model Policy covers all aspects of how domestic violence can impact businesses–from the employee-aggressor whose intimidation tactics spill over into the workplace, to the employee-target who experiences peformance problems as a result of domestic violence.

The Delaware Capital Police have also begun a recent community initiative relating to workplace violence. The Delaware Capitol Police Department is a statewide law enforcement agency responsible for the security of all three banches of state government throughout the state. The Department’s central responsibility is the safety and security of the various state buildings, including the Governor’s Mansion, the Caravel Building, Legislative Hall, the state courts, and more than 80 other buildings in all three counties.

Responding to the current trend in policing, the Delaware Division of Capitol Police has undertaken a community-policing initiative. While the division does not service a traditional community, it does have a similar responsibility to State employees. The Division created a training program on “Violence in the Workplace.” The seminar provides state government employees with an explanation as to what workplace violence is, statistics, reporting, and what to expect of workplace managers and members of law enforcement when these actions are carried out by employees, co-workers, managers, or customers. It also incorporates the Delaware Workplace Violence Policy, giving emloyees a detailed explanation of the purposes of the policy and how it is intended to be applied.

Delaware businesses don’t look far for examples of local workplace violence. I wrote an article on workplace violence for the Delaware Employment Law Letter following last year’s shooting on the campus of Delaware State University. The article, titled Lessons Learned from Local Tragedies, is available at HR Hero.com.

Team-building or torture? A sales rep in Provo, Utah has filed suit over what appears to be an extreme case of workplace bullying. The young man claims, and his employer doesn’t particularly deny, that he was waterboarded by his supervisor as part of a “team-building exercise.” He claims that he volunteered when his boss asked for participants for a “new motivational exercise.” But the 26-year-old says that he had no idea that the “exercise” would involve his supervisor pouring water out of a gallon jug over his nose and mouth, while his coworkers held him down. The last time the team had done an exercise outside, it was an egg toss.

His supervisor remarked immediately afterwards, “You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales.”

It seems that the supervisor truly believed that causing your reports to feel the near-death experience of forced drowning is actually a motivational tool. The employee has filed suit for assault and battery, intentional infliction of emotional distress, and wrongful termination.

Another of the supervisor’s “motivational tools” was to remove all chairs, forcing employees to stand for the entire shift. This was his response to a day without sales. He kept a “motivational 2 x 4″ wooden “paddle” on his desk on stand-by.

Normally, this is where we would provide sage advice on preventative measures, “be proactive with an anti-bullying policy,” and reparative tactics, such as follow-up training for all employees. This case, though, is so extreme those normal reactions seem inappropriate. Instead, my recommendation is to to take a very close look at the supervisors in your workplace. Keep your eyes open for physically aggressive behavior, even if it’s couched as “positive reinforcement.”

This will definitely be a case to keep our eyes on.

I came upon a great blog today worthy of sharing. The bloggers at Workplace Violence News are posting like crazy and have a ton of substantive content. They also have a list of recommended reading and links to other helpful resources.

You can jump to the website from this link.

Robbery at Jake’s Hamburgers