Authored by Steve Holden. Published in the Sacramento Business Journal March 2012.
Imagine this scenario playing out in your workplace: Sam has just been suspended for making veiled threats against the company. He has a history of being disgruntled and is rumored to carry a gun in his car. Shortly after Sam is sent home, an employee reports overhearing Sam earlier in the week make aggressive lunch room threats, including: “The day I tell you to call in sick, you better, because I’m going to come in gunning. I’ll shut the door of the office and let them fly”; and “One of these days some [expletive] is going to [tick] me off and they’re going to have to change the company’s name . . . to USS-Columbine.”
Incidents of threats and violence in the workplace ensnare a wide range of potential legal issues. In addition to implicating the employer’s duty to provide a safe workplace under OSHA, incidents can involve workers’ compensation, harassment and negligent retention claims are just some of the other potential liabilities the employer faces. Should the perpetrator be an existing employee who is thereafter investigated, disciplined and/or discharged, the potential also exists for wrongful termination, discrimination, defamation and invasion of privacy liability. These potential liabilities, however, can be significantly reduced by smart, proactive measures.
Employers who publish a zero tolerance policy against workplace violence, educate their employees on the policy and enforce it have taken a significant first step towards reducing the risk of injury and liability resulting from workplace violence. Despite an employer’s best intentions and practices, though, incidents do occur. Thus, taking the proper next steps is critical.
Many employers do not know that a California statute permits an employer to obtain a temporary restraining order (“TRO”) and a permanent injunction (for up to three years) to protect its employees. California law permits the employer to file for protection on behalf of a specific employee(s) who is threatened. At the court’s discretion, protection can be given to other employees at the same workplace or even at the employer’s other workplaces. Individuals uttering threats of violence may be restrained even if the threat is not against a specified employee but is against the workplace in general, such as what happened in the real-life scenario cited above. Of course, the employer can assist the threatened employee in personally filing for the protection, and in many instances there are strategic reasons to do this instead.
Obtaining the TRO, which may be granted without the knowledge of the alleged perpetrator, is the initial legal process in the court system. It allows swift protection, before the individual is even aware of what the employer is doing. Procedural measures requiring notice to and permitting attendance at a later hearing by the alleged perpetrator apply to the next court step of having the TRO turned into a permanent injunction. In order to obtain relief, the employer must show that the employee “suffered unlawful violence or a credible threat of violence” from any individual. This means that the threat of violence could come from an existing employee, a former employee, a customer or a family member of an employee. A “‘credible threat of violence’ is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family. . . ” Behavior that may be considered a “course of conduct” includes stalking an employee, entering the workplace, making telephone calls, posting messages on the Internet and sending mail, email and text messages.
While evidence of actual violence is usually quite straightforward, the evidence necessary to show the credible threat required for the court to issue a TRO can tricky. On a positive note, however, a recent court decision affirmed that hearsay evidence, if relevant, may be used to support the TRO and injunction. This is an important ruling because threats of violence are often made out of the presence of the employee to be protected. As part of the court process, the employer must also show that “great or irreparable harm” would result to an employee. This can also be tricky, and often requires careful planning in the presentation of evidence. Keep in mind that while judges want to protect individuals at risk, they are hesitant to grant TROs in general because it is a court process under which the accused is deprived of rights without any opportunity to speak or present evidence.
The circumstances of workplace violence vary so widely that each situation must be carefully evaluated based on the perceived imminence and level of threat, as well as the employer’s knowledge of the individual involved in the threat. Obtaining a TRO is just one possible measure to deal with the threat. Circumstances indicating an imminent threat may require the immediate involvement of law enforcement. In other circumstances, it may be prudent to have the behavior evaluated by a professional to gauge the level of threat. Some of the key considerations for proactive employers include the following:
- Establish a zero tolerance policy against workplace violence that is published in the employee handbook and the Illness and Injury Prevention Plan (“IIPP”). Educate employees about it and enforce it.
- Recognize the warning signs of unsafe, threatening or irrational behavior such as word usage, body language and tone of voice. This most often, but not exclusively, occurs in discipline and discharge situations.
- Secure the workplace if needed by appropriate use of 911 and notification to in-house security or other employees.
- Promptly investigate the circumstances with appropriate documentation of witness names, statements, dates, time and other pertinent information.
- Engage a professional, such as a specially trained psychologist, to evaluate the circumstances and assess the individual’s potential for violence.
- If the alleged violator is a current or recently discharged employee, it may be appropriate to offer access to an employee assistance program.
- Educate your employees that a TRO or injunction does not guarantee the absence of violence. Ensure that your employees maintain diligence and awareness and immediately report any violation(s) of the order to the company and to the responsible law enforcement agencies. An individual who violates a TRO or injunction can be arrested and charged with a crime.
- Be mindful that privacy interests must be carefully considered and balanced at each step in the process of dealing with a threat or potential threat.
- Consider whether redress of any sort (economic or counseling) should be made available to the employee(s) threatened or subjected to violence.
In addition to the above proactive steps, an employer who has experienced workplace violence or threats should use the experience as a learning tool to enhance the company’s ability to prevent and react to future threats of or actual workplace violence. This should include debriefing with management, human resources and other key participants involved to determine whether the company’s published policies and procedures should be revised, to evaluate how well communications (internal and external) were achieved and to assess how effective the steps taken were to the goal of meeting the company’s various legal obligations..