The term workplace violence often evokes tragic images of shootings and death. But the problem is much broader than that. Workplace violence includes threats, physical assaults, and aggravated assaults. Even bullying, given its correlation to violence, can be considered a type of violence. And all of it, when allowed to persist in the workplace, invites low morale, low productivity, and even worse violence to disrupt a business’s operations.
It might also have legal consequences.
OSHA’s Take
Although there is no law expressly prohibiting workplace violence, the OSH Act’s General Duty Clause requires employers to provide a workplace “free from recognized hazards that are causing or likely to cause death or serious harm to employees.” OSHA has used this clause to fine employers for workplace violence. For example, a hospital where employees were exposed to violence from patients and visitors was fined $15,000. A convenience store chain was fined $19,600 after OSHA investigated the chain following the murder of an employee. And a social services provider whose social worker had been killed by a client was fined $10,500.
The potential for violence in some industries is high enough that OSHA has used the General Duty Clause as the basis for developing industry-specific guidelines. These industries include hospitals and health care facilities, social-service providers, late-night convenience stores, and taxi companies.
But given the broad nature of the General Duty Clause, OSHA may be justified in citing businesses in less predictable industries too. Specifically, if an act of violence was recognized as a hazard and could have been prevented, OSHA could issue a citation. When might workplace violence be “recognized as a hazard?” When the business was aware of prior violent acts or knew about threats, intimidation, or other indicators of potential violence.
With the increased spotlight on workplace violence, it’s likely just a matter of time before OSHA cites a business for employee-on-employee violence.
Employee Claims
Employees injured by workplace violence have a ready remedy in workers’ compensation. Like the OSH Act, workers’ compensation laws don’t specifically address workplace violence. But they apply to any injury arising out of and in the course of employment. How the injury occurs doesn’t matter, only that it happened on the job and because of the job. Injuries from workplace violence will generally meet these requirements.
And when they do, workers’ compensation will be the injured employees’ sole remedy. As the law currently stands, only in the rarest circumstances would an employee have any other claim against an employer. Some states have considered statutes giving employees or their families the right to sue an employer for injuries sustained in a workplace violence incident. But no state has adopted such a law. Until then, workers’ compensation will be employees’ sole recourse against an employer.
Third-Party Claims
Employees aren’t the only people who could be injured by workplace violence. Third parties—vendors, customers, or guests, for example—could also be injured by violence in the workplace. If an employee commits the violent act, injured parties could sue for negligent hiring, supervision, or retention. Specifically, if the employer had reason to know the employee might turn violent, there could be good ground for a suit. If the employer knew before hiring the person, that would be a negligent hiring claim. A negligent supervision or retention claim, on the other hand, would arise if the employer learned about the possibility for violence during the employment.
If the violent act is committed by a non-employee, third parties may still have a claim against the business. For example, a grocery store that knows of multiple robberies or assaults in its parking lot is required to take steps to prevent its customers from getting injured. It may need to install better lights in the parking lot or hire security. And if it fails to take steps to make its premises safer, the store could be liable when a patron is injured by a third party.
Doing Nothing Isn’t An Option
The most important reason to take steps to prevent workplace violence is to keep people safe. It’s just the right thing to do.
But the potential damage from a workplace violence event is greater than that. The ramifications for even small incidents, if allowed to go unchecked, can be crippling to a business. Legally, it can mean an OSHA investigation and fines, increased insurance premiums due to workers’ compensation claims, and attorney’s fees and damage awards from third-party lawsuits. So it makes business sense to implement policies and procedures designed to curb workplace violence. Doing nothing, on the other hand, makes neither business sense nor common sense.
