March 7, 2016

Author:  Bobbi K. Dominick

With the latest workplace shootings fresh in our minds, employers may turn to the obvious question:  Have we done enough to prevent and promptly respond if it happens in our workplace?  Employers must strike a balance between generating hysteria and encouraging vigilance. 


Here are some things employers can do:

Use effective hiring practices to screen out potential violence

Screen incoming employees for past incidents of aggressive behavior.  In screening processes, make sure that you are asking questions about past incidents, but in a way that targets the behavior, and not potential mental illness.  Ask if the employee was ever disciplined for fighting with co-workers or clients, if the employee ever violated workplace safety rules, etc.  Idaho statutes provide immunity from lawsuits for employers who share information upon being asked.  Congress also is considering a federal law providing a safe harbor for employers who report violent behavior.  Also, consider conducting a criminal background check.  While you must be careful to avoid discrimination charges by conducting a background check, you will be aware of whether there are aggressive or violent tendencies in the candidate that could lead to violent behavior in the workplace.  Screen out the behavior, not the cause.

Implement a workplace behavior policy that addresses violence and bullying

Screening techniques are helpful, but anger might build over time, which means that an existing employee could begin to exhibit violent tendencies.  To assist in such situations, the employer should be proactive.  Have a policy in place that governs respectful workplace behavior, not just related to discrimination, but which also addresses angry behavior, fighting, aggressive behavior, and threats.  Allow employees to report such behavior by promising that they will be protected from retaliation.  Have multiple avenues for employees to report concerns.  A bullying policy can address many of these issues.  Make sure to include behavior that is verbal or physical.  Address the use of profane language, insults, humiliating another person, destruction of property of another, name calling, ridicule, and even include gossip and spreading false rumors.  Do not assume that an employee is mentally ill; instead approach this issue from the standpoint of regulating the inappropriate behavior.  Then, when someone violates the policy, impose consequences on everyone, not just one employee.  Make sure your discipline is consistent. 

Also train managers on proper action to take if the employee indicates the aggressive behavior is due to a disability.  In a 2015 case, a worker reported he was having homicidal thoughts, and asked for treatment.  No behavior had yet manifested in the workplace.  Instead of offering mental health treatment, the employer waited three weeks and then terminated him without clearly identifying the reason other than the employee’s disclosure.  The trial court allowed the case to go to trial, indicating that the case would test the competing policies of accommodating disability and protecting the workplace. 

Train managers on what to look for in spotting potential threats

Train supervisors on what to do when they receive a complaint or how to spot problem behavior before a complaint arises.  Bring in an expert in violence prevention and train managers on what to look for in behavior that is potentially violent.  Have the expert train managers in techniques to deal with anger in the workplace.  Put protocols in place to assure the manager’s safety in addressing the angry employee, such as using the buddy system during confrontations, meeting with doors open, having a plan for a quick exit, and knowing when to call 911 for help.  Consider partnering with local police agencies to review your workplace for safety and security.  Also consider bringing in a professional to consult on investigations into violent behavior to help assess the risk. 

Workplace violence seems to be on the rise and must be addressed, but these three areas are good ways for employers to be proactive in preventing and assessing risks. 

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.