Keep it safe

The recent shocking and tragic public shootings, as well as continued economic challenges, have led to increased concerns about workplace safety. In fact, workplace violence has been increasing steadily. Recent data shows workplace violence now affects about 2 million U.S. workers and costs U.S. businesses almost $36 billion each year. In addition to the personal harm inflicted on employees, workplace violence can result in costly and protracted litigation, damage to an employer's reputation, and decreased morale and productivity among employees.

Accordingly, you should focus attention on preventing workplace violence and developing specific policies and procedures to help minimize the risk and tackle the effects of workplace violence.

Your legal duty

Federal and state laws require employers to provide a safe, healthy work environment for employees and prevent workplace violence and other dangerous behavior that could harm employees. The Occupational Safety and Health Act, which established protective workplace safety standards, requires employers to provide a work environment free of known dangers that could cause serious injury or death.

In addition, Title VII of the Civil Rights Act of 1964 requires employers to provide a work environment free from harassment based on any protected category, such as race, religion, sex and age. Harassment can become unlawful when the conduct is so severe or pervasive it creates an intimidating, hostile, offensive or abusive work environment. In many situations, harassment can lead to conflict or hostility, which increases the potential for violent behavior. Accordingly, Title VII requires employers to protect employees from workplace harassment and address any harassment that has occurred.

State laws may impose additional requirements. For example, many state laws establish safety standards for workplaces, require employers to provide a workplace free from harassment and require employers to provide eligible employees who are victims of violence with leave from work. In addition, employers may be liable for negligence in their hiring practices by failing to adequately investigate employees or failing to discipline or terminate employees who have engaged in misconduct.

Recommendations

Addressing workplace violence is a formidable task. Yet you can and should take certain steps to prevent or minimize its risks and effects. Although you should tailor your plan to your workplace and any specific risks or circumstances, you are well-advised to implement the following recommendations.

First, consider conducting background checks to identify applicants who have histories of violence, including prior arrests and/or convictions. However, be careful you only use such information lawfully and check whether any state laws restrict the use of such information. For instance, certain states prohibit employers from considering arrest records when making hiring decisions.

Second, a well-written and consistently enforced workplace violence policy may help minimize the risk of workplace violence. You should review your workplace violence policy to determine whether it is sufficient or, if you do not have such a policy, promptly prepare and implement one. Although a workplace violence policy should be tailored to your business and any particular hazards, the policy should, at a minimum, contain the following provisions:

• A commitment to maintaining a safe working environment and preventing violence. The policy should clearly state you have zero tolerance for violence and are committed to creating a safe environment.
• Clearly defined prohibited behavior which, in addition to physical aggression, should include bullying, threats, harassment and intimidation. In addition to prohibiting violence among employees, the policy should prohibit violence between employees and customers, clients, visitors, guests or others. Also, consider including language that regulates or prohibits weapons in the workplace. But make sure such policies comply with state law(s) because many states (including Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, North Dakota, Oklahoma, Texas and Utah) have laws protecting an individual's right to possess a gun while on an employer's property.
• Procedures for addressing violent or potentially violent behavior or other safety concerns. You should include a clear mandatory reporting requirement and provide multiple ways in which to report violent behavior, including to any supervisor, security personnel, safety committee and/or human resources staff. After making a report, an employee should be assured the report will be treated confidentially to the extent practicable and will be promptly investigated.
• A disciplinary component for employees who violate the policy. Be prepared to enforce the policy and take serious disciplinary action, including immediate termination of employment, for any violations. As a caveat, ensure you comply with the Americans with Disabilities Act when making disciplinary decisions if an employee has a disability though you are not required to continue to employ an individual who is a direct threat to the health or safety of either himself or herself or others in the workplace.
• A nonretaliation provision for employees who make reports in good faith. Such provisions help minimize employees' fear of reporting.

Finally, make sure your policy is accessible to employees, typically through your company's employee handbook. Also, regularly review and update your policies as necessary.

In addition to distributing a workplace violence policy, you must periodically and comprehensively train supervisors and employees to be aware of and understand their duties under the policy. You should provide training for supervisors about topics such as:

• Monitoring the workplace
• Responding promptly upon receiving a report of workplace violence
• Handling emergencies or other potentially unsafe situations
• Recognizing risk factors that may result in violent behavior (such as layoffs, disciplinary action, etc.)
• Strategies for defusing escalating interactions and addressing or managing aggressive or hostile behavior
• Cultivating a respectful work environment
• Enforcing the policy, including investigating any reports and taking appropriate disciplinary action for any violations

Employees should receive training addressing topics such as their roles in keeping their workplace safe; conduct that is prohibited under the policy; and the requirement of immediately reporting any suspicious or violent conduct in accordance with mandatory reporting procedures. You also can provide information to employees regarding available resources within and outside the company to help employees manage stress and/or control their actions and behavior.

In addition to a workplace violence policy, you should draft and implement other policies that may minimize the potential for workplace violence. Such policies include standards of conduct and anti-harassment, anti-discrimination, disciplinary and other relevant policies. These policies are keys to addressing underlying conflict and behavior before they result in workplace violence.

Emergency procedures

You should have emergency response policies and procedures in place for addressing violent situations in the workplace, including forming an appropriately trained response team and coordinating with local authorities. You also should develop policies to investigate reports and recover from any incidences of workplace violence.

In addition, conduct ongoing risk assessments of your workplace and periodically evaluate security measures, which may include alarms, surveillance cameras, security badges, access codes, security personnel or any other measures that reflect the particular needs of the workplace.

A necessary caution

Keeping in mind the recent surge in public violence and continued economic pressures, take this opportunity to assess your workplace's risk for violence. Making workplace violence prevention a key priority in the new year will help you avoid potential catastrophic consequences.

Jason C. Kim is a partner and Gray I. Mateo-Harris is an associate in the Labor and Employment practice group of Chicago-based law firm Neal, Gerber & Eisenberg LLP.