Violence at Work - How to Deal with Bullying, Intimidation, Threats and Physical Violence

Published in the Tennessee Bar Journal, Vol. 53, No., 4, April, 2017.

Violence in the American workplace is not a new phenomenon. In the age of twenty-four hour cable news and social media, it is sometimes difficult to assess whether workplace violence is on the rise to the point of being an epidemic, or whether we simply hear more about it these days. Fear of terrorism further heightens our awareness of such incidents. Statistics can be misleading, and they can be manipulated. Moreover, the lines are blurred regarding what constitutes workplace violence, as between actual physical assaults versus threats, harassment and horseplay. Both employers and employees have interests in a safe workplace, but there is no checklist or playbook which guides every situation.

Is there an epidemic? In terms of workplace fatalities due to violent acts, nationally those numbers decreased steadily from 2003 to 2010 (n. 1), and after a small uptick, they fell six percent from 2014 to 2015 (n. 2). Fatalities in Tennessee due to workplace violence remained steady from 2013 to 2014 (n. 3) and have remained fairly consistent the past five years.

However, not all workplace violence results in fatalities, or even physical injuries. Not all incidents of workplace violence are reported to be included in statistical analysis. In fact, it is believed that the most common types of workplace violence – bullying, intimidation and threats – are the least reported (n. 4). In 2009, nonfatal violent crimes (such as rape, assault and robbery) were reported against 572,000 adult American workers (n. 5). And if that number does not at least raise some eyebrows, consider what the Occupational Safety and Health Administration (OSHA) says about workplace violence: "Nearly 2 million American workers report having been the victims of workplace violence (defined to include threats, verbal abuse, intimidation, and physical assaults) each year. Unfortunately, many more cases go unreported." (n. 6) 37 Million U.S. workers, twenty-seven percent of the workforce, reported in 2014 that they had directly experienced abusive conduct and/or bullying at work during their working lives, while seventy-two percent indicated they were aware of abuse toward others (n. 7).

Maybe "epidemic" is too strong of a word, but clearly there is a significant problem with violence in the American workplace affecting a great number of workers. Moreover, the economy is significantly affected by the costs of workplace violence. The Department of Justice has estimated that victims of workplace violence miss 1.8 million days of work each year, equating to $55 million in lost wages (n. 8), and these figures do not take into account psychological costs and resulting effects on productivity.

In legal terms, there are different perspectives and considerations, different risks and exposures, different rights and obligations at play. The employee is concerned about having a safe workplace, as well his or her legal rights when faced with bullying, threats, violence or injuries. The employer hopefully has a paternal sense of concern for the well being of workers. Third parties may be impacted, such as customers and vendors. These various interests need not be divergent and competing, but instead, they should be shared and common.

Legal issues related to workplace violence are complicated and intertwined, depending upon such factors as who is the perpetrator of the violence and who is the victim (e.g., employer, co-worker, or third party). Both criminal and civil remedies and rights may be implicated. This article will provide an overview and survey of key concerns and potential legal issues, so as to focus the attention of Tennessee lawyers who counsel both employees and employers, as they are faced with each unique situation (n. 9).

What Constitutes "Workplace Violence?" There is no single definition of workplace violence. It is not limited to on-site physical attacks. According to the National Institute for Occupational Safety and Health, it includes physical assaults and threats of assault, as well as verbal violence, threats of verbal abuse, hostility and harassment (n. 10). OSHA defines workplace violence as "any act or threat of physical violence, harassment, intimidation, or other threatening or disruptive behavior that occurs at the work site" (n. 11). A related Tennessee statute defines "unlawful violence" to mean "assault, aggravated assault, stalking, intimidation or extortion" (n. 12) Therefore, "bullying" and threats can be types of workplace violence, regardless of whether they escalate to physical violence.

Statutory Considerations. Several Tennessee statutes relate to workplace violence directly or indirectly. For example, the Tennessee legislature has adopted the "Healthy Workplace Act" (n. 13), designed to address workplace bullying and "abusive conduct," which is defined to include verbal and nonverbal abuse, threats, intimidation, humiliation, and "the sabotage or undermining of an employee's work performance in the workplace." This Act requires covered employers to adopt model policies for reporting and prevention of abusive conduct in the workplace, and it provides immunity to employers for certain civil claims resulting from such conduct. However, the Healthy Workplace Act is only applicable to state and local government employers and quasi governmental entities, but not to private employers (n. 14).

Tennessee has a statutory procedure (n. 15) permitting either an employee or an employer to obtain a temporary restraining order when there has been "unlawful violence" (assault, aggravated assault, stalking, intimidation or extortion) or a "credible threat of violence" (statements or courses of conduct which threaten death or serious bodily injury) in the workplace. This process tracks the procedure for other retraining orders and injunctions, but the statutes clarify that workplace assaults, threats and intimidation can be grounds for such injunctive relief on petition by the affected employee or the employer.

Tennessee's criminal code provides for potential criminal charges related to "harassment" (n. 16), which includes communicating threats of harm either verbally or through maliciously displaying images, as well as "stalking" (n. 17), which includes following, monitoring, threatening, or repeated contacts which cause the victim to feel frightened, intimidated or threatened. The stalking statute includes contact by telephone or by computer, specifically including social media (i.e., cyber-stalking). Therefore, in addition to seeking the civil remedy of a restraining order and injunction, the victim of workplace violence or bullying might also make a criminal complaint. Of course, there is always the possibility that restraining orders and criminal charges could lead to further, possibly more severe confrontations, so many victims of workplace violence fear using these remedies.

Tennessee's "guns in trunk" law (n. 18) might indirectly affect workplace violence. While a Tennessee employer may prohibit the possession of firearms on the employer's premises generally (n. 19), this law permits the holder of a valid handgun carry permit to keep firearms locked in the trunk of a vehicle in a private parking lot, including an employer's parking lot. A related statute prohibits Tennessee employers from discharging or punishing an employee solely for possessing a firearm in the employee's vehicle in compliance with the "guns in trunks" law, giving the employee a civil cause of action to recover damages and attorney's fees (n. 20). As somewhat of a shield for employers, no employer can be held liable for injuries or death caused by "another's actions" using a vehicle lawfully stored in a vehicle in the employer's parking lot (n. 21), and the presence of firearms on the employer's property pursuant to the "guns in trunks" law "does not by itself constitute a failure by the employer to provide a safe workplace" (n. 22).

Workers' Compensation Considerations. When workplace violence results in injuries to an employee, Tennessee's workers' compensation law might provide the employee with benefits, in which case the employer would also have the protection of the exclusive remedy rule, prohibiting the injured employee from pursuing a tort claim against the employer seeking non-economic damages for pain and suffering and the like. Under Tennessee workers' compensation law, assaults resulting in injuries at the workplace are characterized as: (1) having an "inherent connection" to employment, such as disputes over performance, pay or termination, in which case the injuries are compensable; (2) stemming from "inherently private" disputes imported into the employment setting from the claimant's domestic or private life and not exacerbated by the employment, in which case the injuries are not compensable; and (3) resulting from a "neutral force," such as random assaults by persons outside the employment relationship, likely including assaults where the cause is simply unknown. In this third category, whether the injuries are compensable depends upon whether there is a connection to the employee's work (n. 23).

There is also an exception to the exclusive remedy rule where the employer has committed an intentional tort, including an assault, against the employee. If the employee can prove that the employer acted with an "actual intent" to injure, then the employee can sue the employer in tort and is not limited to asserting a workers' compensation claim. However, the exception is narrowly construed, such that an employer "knowingly permitting a hazardous work condition to exist" will not suffice to remove the claim from the workers' compensation exclusive remedy rule (n. 24).

Workers' compensation may provide the employee a basis for some compensation for injuries without the requirement of proving that the employer was somehow at fault. However, the injured employee's remedies and recovery will be limited, and therefore, on some occasions an injured employee would prefer to proceed against an employer in tort. For example, if the employer failed to provide a safe workplace and that was a factor resulting in the employee's injuries, the employee might prefer to sue the employer for negligence and seek to recover damages including pain and suffering, loss of enjoyment of life, etc.

OSHA Violations. The "general duty clause" of the federal Occupational Safety and Health Act (OSHA)(n. 25) requires employers to provide employees with a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm to … employees." OSHA has developed guidelines related to preventing workplace violence in health care and social service operations, as well as in the late-night retail industry. A 2011 Directive permits OSHA to investigate all incidents of workplace violence, whether they involve fatalities or not, including a determination whether the employer used the most effective feasible controls available to protect its employees from acts of workplace violence. If not, then the employer may face civil penalties issues by OSHA, up to $12,741 per "serious violation" (n. 26). However, OSHA violations do not create a private cause of action for persons injured on account of workplace violence (n. 27).

Potential Employer Liability. As is noted above, an employer may have workers' compensation liability for certain injuries to employees caused by incidents of workplace violence, and under some circumstances an employer could be held liable to an employee in tort for injuries from some workplace assaults (e.g., from "inherently private" disputes), if the injured employee can prove negligence, breach of duty, or breach of the applicable standard of care on the part of the employer. In addition, sometimes workplace violence results in injuries to non-employee third parties, such as customers, clients, vendors and invitees. Those injured parties may also assert legal claims against the employer.

In most cases, where the act of workplace violence is committed by an employee, the employer should not be held vicariously liable under the theory of respondeat superior, because the offending employee would not be acting on behalf of the employer within the scope of employment (n. 28). In other cases, while the employer may not face vicarious liability, it may have liability for its own acts or omissions. In particular, where the employer hires or retains an employee known by the employer to be dangerous, or where the employer could have learned of the employee's dangerous tendencies through a routine investigation but fails to do so, and where that employee then commits an act of violence resulting in an injury, the employer may be held liable for its own negligence under the theories of negligent hiring or retention. To recover under these theories when an employee has caused an injury, the injured person must prove the standard elements of negligence on the part of the employer (i.e., a duty of care, conduct falling below that duty of care, an injury or loss, causation in fact, and legal or proximate causation)(n. 29), as well as that the employer had knowledge of the employee's unfitness for the job, yet hired or retained the employee despite such knowledge (n. 30). An employer may also be held liable for its own negligent training or supervision of an employee which results in an injury. To avoid these types of negligence claims, employers should review applications, perform screening (including criminal background checks for some jobs), contact prior employers to verify employment, check references, and document their efforts (n. 31).

The Tennessee legislature has enacted a statute effective July 1, 2014, which affects negligent hiring claims in one particular instance (n. 32). As an incentive for employers to hire certain convicted felons who have taken steps to turn their lives around, the statute permits them to petition to have their citizenship rights restored and to obtain a "certificate of employability." If an employer hires former convicted felon who has obtained such a certificate, and if there is a subsequent claim against the employer based upon the wrongdoing of that employee, then so long as the employer was aware of the existence of the certificate, the employer has "immunity" from a claim of negligent hiring. The statute provides that the employer can only be held liable if the employee possessing the certificate "demonstrates danger or is convicted of a felony" after being hired, and if the employer is aware of that subsequent information but willfully retains the employee.

In other cases, an employer may face liability for its own acts or omissions when the perpetrator of workplace violence is not an employee, but the violence occurs at the employer's workplace. These claims can include claims ranging from premises liability generally to claims based upon duties which arise when the employer has a "special relationship" with either the individual who is the source of the danger or the person who is at risk (n. 33). Generally a business has a duty to take reasonable measures to protect its customers from foreseeable criminal attacks (n. 34). However, the employer who owns the premises is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur (n. 35).

The employer's risk of liability based upon acts of workplace violence perpetrated by third parties will always be dependent upon a duty analysis, which will include consideration of a wide range of factors. Therefore, there is no simple set of guidelines which can be followed. However, the risks of liability for employers due to acts of workplace violence committed by third parties can be substantial. For example, the family of an employee killed in a murder-suicide committed by the employee's ex-boyfriend in Chicago in 2010 sued the employer, Old Navy, alleging that it failed to take precautions to protect its employees after the perpetrator had called the store and made threats to managers (n. 36). Families of four killed in a nursing home in Carthage, North Carolina sued the facility after a March, 2009 shooting, claiming that the employer was aware of a specific threat, but failed to take proper safety measures to protect guests and staff. The perpetrator killed his estranged wife and seven others (n. 37). In November, 2016, a Texas jury awarded the estate of an employee, a military veteran murdered by a co-worker, more than One Million Dollars in a civil lawsuit alleging that the employer was negligent in providing an unsafe workplace and failing to warn the employee of the perpetrator's dangerous tendencies (n. 38).

Steps to Prevent Workplace Violence. Because workplaces involve human interactions, and because humans are unpredictable, it will never be possible to prevent all workplace violence. However, certain steps are advisable to minimize risks and liabilities.

First, employers should adopt and publish a written "zero tolerance" policy toward aggressive or violent behavior at the workplace. This should include a safe complaint procedure for employees to report their concerns about potential or actual threats, intimidation or violence, without fear of reprisal. The procedure should protect confidentiality and should identify a designated official to receive such reports.

Second, that policy must be enforced across the board. Supervisors should be trained in handling situations. Even if an employee has a history of mental illness, and is therefore covered by the Americans with Disabilities Act, a uniformly applied zero tolerance policy means that his or her aggressive acts are not protected.

As part of the workplace violence policy, Tennessee employers may consider specifically stating that the possession of weapons on company property is prohibited (with the exception of "guns in trunks" of vehicles in the parking lot, so long as the employee has a proper permit). This policy would include employees who are authorized by law to carry concealed weapons. There is no specific prohibition against carrying such weapons on the workplace premises unless the employer posts such a policy (n. 39).

Supervisors and managers should be trained to recognize various danger signals, including: when an employee has been fired or laid off; an employee who has made verbal threats; an employee who is under visible stress or has had changes in habits; an employee making bizarre remarks; an employee overreacting to situations; an employee with mood swings or depression; an employee suffering marital or family problems, or financial problems; an employee expressing anger, paranoia, or having difficulty accepting criticism.

If a situation or incident is reported, the employer should investigate, interview witnesses, informants and targets quickly, prepare thorough written reports, and take whatever actions are necessary in response.

Employers should conduct pre-employment background investigations of prospective employees, particularly in certain situations. At a minimum, employers should follow up on job references, talk to former employers, and ask about any gaps in employment history. The interview process should be treated as critically important. The interviewer should use open-ended questions and be observant of "red flag" responses.

Employers should also analyze the workplace and identify particular areas of risk. Think about the reception area, parking lot, break room and locker room – how could they be made safer? Consider inviting a law enforcement officer to tour the facility and make suggestions. Arrange furniture to prevent employees from becoming trapped, and consider installing panic buttons. Require visitors to sign in and out, require name tags, post security numbers by telephones, and keep doors locked after hours. Survey employees and get their input. Consider closed circuit cameras, keypad access to work areas, and security guards. Train employees on an evacuation plan, and train them to recognize and anticipate problems. Take precautions regarding money collected at the workplace and bank deposit procedures.

Avoid doing anything to antagonize a discharged employee. If employment must be terminated, allow the employee a brief opportunity to speak his or her mind. Schedule the discharge for the end of the day and do not allow the employee to go back into the workplace unescorted, but instead make arrangements for the return of personal property or allow the employee to collect his or her effects under appropriate security.

Many of these are common sense ideas. However, the key to minimizing the threat and risk of workplace violence is to do something more than come up with good ideas, policies and protocols – instead, they must be implemented, taught, reviewed and updated. Vigilance is key.

Conclusion. Workplace violence may not be at an epidemic level, but it is a growing threat which should be taken seriously. Even though it cannot be wholly prevented, it can be minimized. Hard work has always been a stalwart ideal in America, and employees deserve employers' best efforts to keep the workplace safe and to minimize the risks of workplace violence. Hopefully some of the ideas presented in the article may spur employers and their lawyers to understand the risks and come up with even better solutions.

ENDNOTES:

1. "Fatal Occupational Injuries by Selected Characteristics, 2003-2015," Bureau of Labor Statistics; available at www.bls,gov/iff.
2. "Census of Fatal Occupational Injuries Summary, 2015," an Economic News Release prepared by the Bureau of Labor Statistics; available at www.bls.gov/news-release/cfoi.nr0.htm.
3. "Census of Fatal Occupational Injuries" Tennessee Department of Labor & Workplace Development, 2013 and 2014; available at www.tn.gov/workforce/article/workforce-occupational-injuries-illnesses-and-fatalities.
4. Sahadi, J., "How Common Is Workplace Violence?" August, 2015; available at money.cnn.com/2015/08/26/news/workplace-violence-virginia-shooting.
5. "Workplace Violence, 1993 – 2009," prepared by the U.S. Department of Justice, Office of Justice Programs, March, 2011, emphasis added.
6. OSHA Safety and Health Topics, "Workplace Violence"; available at www.osha.gov/SLTC/workplaceviolence.
7. "2014 WBI U.S. Workplace Bullying Survey," prepared by the Workplace Bullying Institute, 2014.
8. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics National Criminal Victimization Survey, 1994.
9. This article does not discuss harassment, retaliation and similar claims which arise under discrimination laws, but which could be implicated depending upon the facts of a particular case.
10. National Inst. for Occupational Safety & Health, Workplace Violence Prevention Strategies & Research Needs, § 1.2.
11. See OSHA, n. 6.
12. Tenn. Code Ann. § 20-14-101(5).
13. Tenn. Code Ann. §§ 50-1-501 et seq.
14. Tenn. Code Ann. §§ 50-1-501(3), definition of "employer"; see also Tennessee Attorney General Opinion OAG 15-01 (2015).
15. Tenn. Code Ann. §§ 20-14-101 et seq.
16. Tenn. Code Ann. § 39-17-308.
17 Tenn. Code Ann. § 39-17-315.
18 Tenn. Code Ann. § 39-17-1313.
19 Tenn. Code Ann. § 50-1-312(d).
20 Tenn. Code Ann. § 50-1-312(b).
21 Tenn. Code Ann. § 39-17-1313(b).
22 Tenn. Code Ann. § 50-1-312(c).
23 Padilla v. Twin City Fire Ins. Co., 324 S.W. 3d 507, 511-512 (Tenn. 2010).
24 See, e.g., Rodgers v. GCA Svcs. Group, 2013 Tenn. App. LEXIS 99 (Tenn. App., W.S., decided February 13, 2013), citing Mize v. Conagra, Inc., 734 S.W. 2d 334 (Tenn. App. 1987).
25 29 U.S.C. § 654(a)(1).
26 Effective August, 2016, per 29 C.F.R. § 1903.15(d)(3). By way of example, OSHA cited the Acadia Hospital in Bangor, Maine in 2011 for failing to provide its employees with adequate safeguards against workplace violence, including failure to have adequate policies, training and screening procedures.
27 See Ellis v. Chase Communications, 63 F.3d 473 (6th Cir. 1995).
28 See, e.g., Tucker v. Sierra Builders, 180 S.W. 3d 109, 120 (Tenn. App. 2005).
29 See Satterfield v. Breeding Insulation Co., 266 S.W. 3d 347, 355 (Tenn., 2008).
30 See Brown v. Christian Bros. Univ., 428 S.W.3d 38, 56 (Tenn. App. 2013).
31 See also Restatement 2d of Torts, § 317 (2nd 1979), which imposes a duty upon "masters" to control the conduct of "servants" acting outside the scope of employment, including a duty to prevent the employee from intentionally harming others; this Restatement section has been cited with approval in Tennessee cases, see, e.g. Nichols v. Atnip, 844 S.W.2d 655 (Tenn. App. 1992).
32 Tenn. Code Ann. § 40-29-107.
33 Cullum v. McCool, 432 S.W.3d 829, 833 (Tenn. 2013).
34 Id., citing Restatement 2d of Torts, § 344 (2nd 1979).
35 Id., citing McClung v. Delta Square Ltd. Pshp., 937 S.W.2d 891 (Tenn. 1996).
36 "Family of Woman Shot at Loop Old Navy Sues Store," available at www.nbcchicago.com/news/local/old-navy-loop-shooting-lawsuit-97623189.html.
37 "Families Claim Carthage Nursing Home Knew of Potential Attack," available at www.wral.com/news/local/story/9845639.
38 "Jury Awards War Hero Over $1 Million; Verdict Returned on Employee Murder Lawsuit," The Orange Leader, available at www.orangeleader.com/2016/11/14/jury-awards-war-hero-over-1-million-dollars-verdict-returned-on-employee-murder-lawsuit.
39 Tenn. Code Ann. § 39-17-1315(b).

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