Human Resources: Preventing Workplace Violence And Avoiding Legal Liability

Contributed by the attorneys who write Indiana Employment Law Letter Baker & Daniels

Unfortunately, workplace violence is a growing phenomenon. It takes only a glance at a newspaper or the television news to realize that violence has become a significant problem in the workplace just as it has in society in general. In fact, one survey estimated that as many as one in four employees has been harassed, threatened, or attacked at work.

While the cost of human life is immeasurable, employers have found that there is a very real cost for failing to take steps to protect their employees. Juries have awarded millions of dollars to individuals who have been the victims of workplace violence. Unfortunately, employers continue to overlook their potential exposure to liability from those acts.

This article - a three-part series - will present 10 basic steps you can take to avoid the human tragedy and potential legal exposure for violent acts in the workplace. The first part reviews measures that you can take to prevent workplace violence.

Step 1 - understand what triggers workplace violence
To prepare for workplace violence, it''s first important to understand the factors that could lead to violent acts. Although it''s impossible to list all the factors, some of the more common are:

the rising incivility in today''s society;

problems outside the workplace, such as domestic disputes that spill over into the workplace;

feelings of insecurity among workers generated by a recent rise in corporate restructurings and layoffs; and

increasing workplace stress because of competitive markets and the pace at which business functions as the result of new technology.

While corporate restructuring and the pace of business aren''t likely to change, understanding those and other factors that could lead to workplace violence enables your company to be conscious of the risks as you conduct various business activities. Also, other factors may be unique to certain business environments or industries. In those instances, it''s important to assess the individual pressures and stresses employees experience that ultimately could trigger a violent situation.

Step 2 - conduct preemployment screening
Many workplace violence issues and potential liability can be avoided by carefully and thoroughly screening job applicants. Of course, that screening goes a long way toward limiting other sources of potential legal liability, such as harassment and negligence claims.

The first tool in the preemployment screening process is the job application. Many employers overlook the value of that tool and use it more as a formality than as a source of identifying potentially problematic or violent employees.

Employment application forms should be reviewed periodically to ensure that they elicit information that''s useful in the preemployment screening process and don''t ask questions that are or could be construed as unlawful (e.g., certain disability-related questions).

Once in use, employment applications can be very helpful. Unfortunately, many employers don''t pursue the information provided or omitted. For example, an individual who leaves certain information blank on a job application may have done so inadvertently or because he has something to hide. Additionally, there may be information provided that requires further inquiry. For example, an applicant may have a significant gap in employment. That gap could be due to going to school, raising a child, and so forth, or it could be due to incarceration for a violent crime. Therefore, it''s important to scrutinize job application information carefully and follow up on those points.

Just as important is the preemployment interview. Interviews provide your best opportunity to get a feel for a candidate and question him about information provided or omitted on the application. It also provides an opportunity to elicit information about how he would function in the workplace and whether he has the potential to become violent in the workplace.

For example, questions regarding the employee''s best and/or worst supervisors may invite him to make comments that could suggest the potential for workplace violence. Interviews (as well as applications) also provide the opportunity to obtain information about former employers and references.

Once that information is obtained, it''s important to contact the former employers and references. Many may refuse to provide information about an individual out of fear of defamation or similar claims. Even if that occurs, the results should be documented to establish a record of good-faith efforts to obtain as much information as possible should later claims, such as negligent hiring, arise.

In working to prevent workplace violence, you''re also well advised to obtain limited criminal history information on applicants. Indiana law allows certain law enforcement agencies to release information on arrests, indictments, convictions, or other forms of criminal charges under certain circumstances. The minimal cost of obtaining that information is well worth the expense. Of course, you must be careful to avoid potential discrimination claims in how you handle and use that information.

A final step in the preemployment process that can help you avoid workplace violence is to highlight your company''s stance on the issue in any new hire meetings or orientation materials. You should convey a clear message to applicants that violent behavior won''t be tolerated.

Step 3 - adopt work rules or policies
It''s critical for you to establish and implement work rules and/or policies that address workplace violence. The rules and policies should prohibit:

making verbal or physical threats toward management, staff, supervisors, co-workers, vendors, guests, or anyone else while on your premises or conducting work-related business off-site;

bringing firearms or other weapons onto your prem-ises; and

any other acts that you may view as carrying the potential for workplace violence.

Many employers have instituted written policies on violence that are similar to those they have in place for harassment. Of course, periodic audits and evaluations of the policies are critical.

Bottom line
These are only a few of the steps you can take in the preemployment process to decrease the risk that violent acts will occur in your workplace. In the next two parts, we''ll explore steps you can take to react to violent workplace situations as they arise and steps to deal with those situations moving forward.

Copyright 2002 M. Lee Smith Publishers LLC. This article is an excerpt from INDIANA EMPLOYMENT LAW LETTER. INDIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems, but rather to provide information about current developments in Indiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.