Chapter 26 - § 26.5 • THEORIES RELATING TO EMPLOYER LIABILITY

• Jurisdiction: Colorado

§ 26.5 • THEORIES RELATING TO EMPLOYER LIABILITY

Unfortunately, given the unpredictable nature of workplace violence, violent acts may occur despite an employer's precautions. In the event of a violent occurrence, it is becoming more likely that employers will face civil lawsuits by employees, other victims, and sometimes by the accused. It is necessary, therefore, to understand the various legal theories under which employers may be liable and their possible defenses.

§ 26.5.1—The Colorado Workers' Compensation Act Exclusivity Provision

Traditionally, a Colorado employer's liability for workplace violence has been limited by the application of the Colorado Workers' Compensation Act (Act), which generally precludes claims against employers arising out of and in the course of employment. See generally C.R.S. §§ 8-41-102, et seq.; see also Chapter 25. Establishing the applicability of the Act to a suit may result in summary judgment in favor of the employer. Therefore, it is crucial that an attorney prosecuting or defending a claim consult the Act.

The Act provides that, with some exceptions, an employer who has complied with the relevant provisions shall not be liable for the death or personal injury of an employee. Id. It further expressly abolishes "all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies" for such injuries. Id.

An injury is covered by the Act when: (1) the employer and employee both are subject to the provisions of the Act, and the employer has complied with the provisions regarding insurance; (2) at the time of the injury, the employee is performing service "arising out of" and "in the course of" employment; and (3) the injury or death is proximately caused by an injury arising out of and in the course of employment and is not intentionally self-inflicted. C.R.S. § 8-41-301. According to the Colorado Supreme Court, the phrases "arising out of" and "in the course of" found in this section are not synonymous; a claimant must prove both requirements. See Tolbert v. Martin Marietta Corp., 759 P.2d 17, 20 (Colo. 1988). The phrase "in the course of" refers to the time, place, and circumstances under which the injury occurred. Id. An accident "arises out of" employment when there is a causal connection between the work conditions and the injury. Id.

When an employee is eligible for compensation under the Act, the employee generally is barred from maintaining an intentional tort claim against both a coworker and the employer. Id. In recent cases, however, courts have shown an increased willingness to refuse to limit recovery by an injured employee.

Practice Pointer
The Colorado Workers' Compensation Act does not preclude federal claims, such as claims brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e). See Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001) (co-employee's alleged sexual harassment of employee was "inherently private," so that the alleged harassment did not "arise out of employment," and the Act's exclusivity provision therefore did not preclude employee from bringing sexual harassment and related tort claims").

Violent acts can be characterized in three ways for the purposes of determining whether the Act's provisions immunize an employer: (1) injuries arising out of employment as a result of assaults with an "inherent connection" to employment, such as disputes over pay, performance, or termination; (2) claims resulting from a "neutral force," such as assaults for no understandable reason, but still connected to the workplace; and (3) "inherently private" torts imported from the injured person's domestic or private life, and not exacerbated by the employment situation. Tolbert, 759 P.2d at 23-24.

In the first two instances, the injuries are compensable under the Act and the employer is generally immune from civil action liability. In the third, the employer is not immune because "inherently private" torts do not "arise out of employment" and thus are not covered by the Act. Id. at 24. These claims, however, are dependent on the facts, and the courts will examine the totality of the circumstances in each case to determine whether the employer is immune under the Act. Id at 20. For example, applying these standards, the Tolbert court held that the Act precluded a claim by an employee who was raped by a fellow worker while on her way to lunch at the company's cafeteria. Id at 26. The court ruled that since the claimant's job placed her in a particular place at a particular time, and the injury resulted from a "neutral force," workers' compensation was her exclusive remedy, and thus the employer was not liable. Id.

§ 26.5.2—Evolving Liability Theories

Although the Act generally has immunized covered employers from many types of claims, OSHA may cite employers for foreseeable acts of violence under the Occupational Safety and Health Act (OSH Act). 29 U.S.C. §§ 651, et seq. Also, courts have relied on exceptions and new theories to impose liability on employers. As detailed in the following discussion, an employer may be liable to customers, bystanders, guests, and employees for the violence inflicted by one of its employees. In attempting to investigate and prevent such occurrences, however, the employer must be mindful of the competing interests between safety concerns and privacy issues regarding the accused employee. Theories of liability against the employer under the OSH Act, by the victim and by the accused employee, are set forth below.

§ 26.5.3—OSHA General Duty Clause

The basic purpose of the OSH Act is "to assure so far as possible every working man and woman . . . safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b). Congress sought to achieve this purpose in part by encouraging employers and employees to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new programs and to perfect existing programs for providing safe and healthful working conditions. Criminal Violence in the Workplace, # 19920513 (U.S. DOL, OSHA, May 13, 1992), citing 29 U.S.C. § 651.

OSHA has developed guidelines and recommendations to reduce worker exposures to the hazard of workplace violence, but it is not initiating rulemaking at this time. However, the agency may cite employers under the "General Duty Clause" of the OSH Act, Job Safety, which provides that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(1). The OSH Act broadly defines the term "employer" to include all persons engaged in a business affecting commerce who have employees, with the exception of the United States or any state or political subdivision of a state. 29 U.S.C. § 652(5).

According to an opinion letter issued by OSHA, the General Duty Clause requires employers to take steps necessary to reduce or eliminate the recognized hazards present that are likely to cause death or serious physical harm to employees, including, in some instances, the violent acts of third parties:

There is no reason to exclude from this list of hazards criminal acts of violence which are "recognized" as a part of the nature of doing business. Thus, in an employment arena where robbery is a "recognized" hazard, arguably the employer has some obligations to minimize those risks. Failure of a vulnerable employer to implement feasible means of abatement of these hazards could result in a finding of an OSHA violation.

See Correspondence: OSHA Standards Which Address Violent Employee Behavior in the Workplace, # 19921210 (U.S. Dep't of Labor, OSHA, Dec. 10, 1992). While noting that OSHA imposes a requirement to minimize recognized risks, the opinion letter emphasizes that occurrences of criminal acts of violence that are not recognized as characteristic of employment and represent random antisocial acts that may occur anywhere may not subject the employer to a citation for violation of the General Duty Clause: "It cannot be over-emphasized that whether or not an employer can be cited for a violation of 5(a)(1) is entirely dependent upon the specific facts, which will be unique to each situation." Id.

To prove a violation of the General Duty Clause, OSHA must establish the following four factors: (1) a condition or activity in the workplace exists, presenting a hazard to employees; (2) the condition or activity is recognized as a hazard by the employer or by the industry; (3) the hazard is likely to cause death or serious harm; and (4) a feasible means of eliminating or materially reducing the hazard exists. Possible consequences for violation of the General Duty Clause include citations, corrective orders, and civil penalties. The OSH Act does not create a private right of action.

Curbing workplace violence appeared to be a major issue for OSHA. In 2010, OSHA updated its guidelines for safety measures to help prevent violence against taxi drivers. In 2015, OSHA updated its March 1997 guidelines for preventing workplace violence in the health care and social service industries, where two-thirds of such violations occur. In 2009, OSHA updated its workplace violence guidelines for the night retail industry, which are available at www.osha.gov/Publications/osha3153.pdf. While OSHA hoped to propose workplace violence guidelines for general industry in 1997, guidelines have yet to be promulgated. Many employers, however, fear that such guidelines could lead to a recognized standard of care, which may leave them vulnerable to negligence per se claims.

In January 2017, OSHA issued updated policy guidance and procedures for OSHA field offices to follow when conducting inspections and...