Employers can avoid becoming victims of workplace violence.

• Author: Albetta, Frank
• Position: LAW JOURNAL 2010

Bureau of Labor Statistics records reveal that during the last two decades, homicide has been one of the four leading causes of workplace deaths. During that period, workplace violence became sufficiently distinctive for law-enforcement authorities to regard it as a specific category of violent crime.

The reasons for the growth of workplace violence may be traced to long-emerging social developments and the increasing demands of jobs and careers. As many have invested greater time, energy and other resources in their occupations, social and personal drives increasingly are played out at work. Economic downturns increase workplace tensions due to job insecurity, increased productivity requirements and the incursions of stress from outside the workplace. Add to that the workplace's distinction as the point of interaction among people who, for a variety of reasons, would not otherwise interact and the result is a more emotionally "loaded" work environment.

Employers can be held liable for damages from workplace violence, including the threats, harassment, bullying, domestic violence, stalking, verbal and emotional abuse, intimidation and other forms of misconduct that many employers encounter in their workforces, and employee or third-party lawsuits can hobble employers long after the operational effects have subsided.

Sources of employer liability

In order to create liability for the employers when employees succumb to their personal impulses, victims of employee violence must prove some element of fault by the employer. The principal bases for such fault are negligence, failure to control of the premises and violation of statutory obligations.

Negligence: As employers are subject to the ordinary legal duty to use reasonable care to prevent a foreseeable risk of injury to others, a failure to respond to known risks in the workplace can constitute actionable negligence (subject to the exclusive workers' compensation remedy discussed below). If an employer has reason to know that a risk of violence exists, the law imposes a duty to warn others, especially if a specific person is at risk. The key is whether the employer had notice of the threat.

Liability for negligent hiring usually turns upon the adequacy of the employer's pre-employment background and reference checks, particularly when the prospective employee would have special access to third persons, as with home delivery or repair persons, or to particularly vulnerable...