Employers face an array of issues and theories when trying to prevent violence in their workplaces, and they need competent counsel
VIOLENCE in the workplace" has become a hot topic for the defense community. Although a recent U.S. Supreme Court decision has declared the federal Violence Against Women Act unconstitutional,(1) employers still face a significant risk of liability for unpredictable acts of workplace violence. Why so? Violent incidents at places of employment are nothing new, nor do they seem to be increasing.(2) However, occasional spectacular events receive widespread publicity. Claims are increasing because of news media attention to these incidents. Changes in the United States legal system are another explanation for this increase.
Not long ago, even the most serious incident would result in no more than a workers' compensation claim by the injured employee and a criminal prosecution against the perpetrator. Other efforts to subject the employer to liability ran afoul of restrictive common law agency rules governing vicarious liability for intentional acts committed by employees.(3) Ordinarily the rule of Section 219 of the Restatement (Second) of Agency was followed, and liability attached only if the employee was acting "within the scope" of employment.
Employees who perpetrate serious violent acts rarely are acting on behalf of their employers. In the picturesque language of older case law, they are "off on a frolic of their own." A few exceptions were applied, mostly to common carriers, where the violent act could be characterized as a breach of contract, as, for instance, in a 1905 Massachusetts case in which a street railway passenger was able to recover for injuries received when a dead chicken was hurled at a trolley car by a railway employee.(4)
However, courts have been moving away from "scope of the employment" as the touchstone for employer responsibility for employee intentional wrongdoing. Traditional agency concepts are now being interpreted much more liberally. One current trend, reflected most notably in two recent U.S. Supreme Court cases, is toward imposing liability when an employee was "aided in accomplishing the tort by the existence of the agency relation."(4) This analysis may apply to unauthorized acts performed for purely personal gratification, whenever the agency relationship made it easier for an employee to commit an intention tort. Other cases find ratification of misconduct where an employer fails to stop it.(5)
The current trend is toward imposing a greater duty on employers to provide safety in the workplace by protecting employees and others against violent acts. Defense counsel who represent employers must consider possibilities such as a premises liability claim by a third party, a citation based on the Occupational Health and Safety Act, an employment discrimination claim, or even a criminal prosecution against the employer. Lawyers who are employers themselves should realize that their firms could be adversely impacted by litigation arising from incidents in their own offices. Few have done so.
Defining "workplace violence" has generated considerable discussion. Some would include in the definition any language or actions that make one person
uncomfortable in the workplace. Others would include threats and harassment. All would include any bodily injury inflicted by one person on another. Thus, the spectrum of workplace violence ranges from offensive language to homicide, and a reasonable working definition is: violent acts, including physical assaults and threats of assault, directed toward persons at work or on duty.(6)
State and federal agencies concerned with workplace violence often categorize incidents into three types:
Type I: Offenses by strangers;
Type II: Offenses by customers, clients or consumers of the services offered by the employer; and
Type III: Offenses by current or former employees and their acquaintances.
Statistically, the overwhelming majority of serious incidents are of the Type I variety. In the most typical event, the perpetrator is a stranger, usually an armed robber, who kills a convenience store cashier. "Disgruntled postal worker" and domestic stalker incidents get heavy coverage by print and electronic mass media. This creates the false impression that they are prevalent. In fact, they are not statistically frequent. The classic instance of workplace violence is probably a fight between a chef and a salad man in some restaurant kitchen with no significant injuries to anyone.
"Personal acquaintances"--husbands, former husbands, boy friends, former boy friends, other relatives--account for only 4 percent of workplace homicides. About one thousand workplace homicides occurred in the United States in 1994. Coworkers and former co-workers accounted for only 5 percent.(7) This means that there were about 40 incidents in which domestic violence was involved and about 50 in which co-workers or former co-workers participated. If all U.S. states had equal population and crime rates (which they definitely don't!), one could expect one or two such incidents in a state in a typical year.
News media reporting creates a liability problem for employers. The resulting mindset treats this type of event as likely. This attitude will result in unfair imposition of liability on employers. The defense bar should be hesitant to buy into the idea that any epidemic of workplace violence necessitates extraordinary protective measures by most employers.
The types of issues that employers' counsel might face now or in the future when they defend or advise their clients fall in several separate categories:
* Worker's compensation
* Premises liability and other negligence claims
* Employment discrimination
* OSHA citations and fines
* Criminal prosecutions
Probably all American jurisdictions would recognize the compensability of personal injuries sustained by employees who are assaulted in the workplace.(8) Do employees have some form of civil action against their employers in addition to their right to receive workers compensation? In general, exclusive remedy provisions bar negligence claims for personal injuries. However, claims for something other than negligence or seeking damages for something other than personal injuries might not be barred. Jurisdictions may vary considerably in what additional claims are allowed. Discrimination claims, for instance, usually are not precluded by the exclusive remedy provisions of workers' compensation acts.(9)
An important question raised by OSHA's recent interest in workplace violence is this: If an employer violates an OSHA directive concerning employee safety, does this deprive the employer of the protection of the exclusive remedy provision? The answer depends on the wording and judicial interpretation of each state's statute. In most states, an employer is exposed only to an increase in the rate of workers' compensation as a penalty for the violation.(10) A few jurisdictions, however, allow the employee the option of a negligence suit, if the injury is caused by "willful misconduct" of the employer. Sometimes, a knowing or intentional failure to abide by safety regulations has been characterized as "willful misconduct."
Premises liability claims, described below, probably will be barred by the exclusive remedy doctrine, but employment-related discrimination claims probably will not be barred.
PREMISES LIABILITY AND NEGLIGENCE CLAIMS BY THIRD PARTIES
Workplace violence has the potential of injuring non-employees, especially if a business is open to the public. Of course, the exclusive remedy provisions of workers'...