How to Reduce Workplace Violence and Minimize Liability
By Liz Hartsel
Federal and state job safety laws require employers to provide a safe work environment for employees. Unfortunately, in recent years workplaces have become venues for gun violence. Employers have rightfully become increasingly concerned about identifying potential vulnerabilities and preventing or reducing risks of harm.
Recently, an employer I work with invited their local staff to a team-building event at a performance venue. Much to the employer's surprise, they discovered at the metal detectors that one employee was carrying a gun. Although the employee had a concealed carry permit, the venue did not allow firearms of any kind, and the employee was not allowed entry.
As a result of this incident, the employer learned that this employee practiced concealed carry at all times; the employer was unaware of this and felt uncomfortable about it. The employer reached out to me with a request to help them craft a company gun policy and avoid future issues such as this one.
As an attorney specializing in employment law, I’ve had several employers ask similar questions about if and how they can implement a weapons-free workplace or inquire about their potential liability in cases of workplace violence. These questions are critically important and pose several challenges for employers regarding legality.
Creating a weapons policy in the workplace
As a first step, every employer looking to create a weapons policy should understand two key points:
1. Your state’s concealed carry laws
Many state laws do allow concealed carry at work if the employee has a valid permit and carries the weapon in accordance with the law. However, since firearms laws vary so widely from state to state, it is typically virtually impossible for a multistate employer to craft a policy that will legally stand nationwide.
Depending upon your state’s law, employers may ask employees to voluntarily not bring legal concealed carry weapons into the workplace. Still, they typically cannot require it or otherwise coerce their employees to comply with the request. Some states actually allow employees to file civil lawsuits against employers who violate workplace gun laws, which is yet another reason why consulting with an attorney before drafting any weapons-related workplace policies is essential.
2. Your state’s “parking lot laws.”
Many states have enacted parking lot firearm laws that govern the carrying and storage of firearms in employee parking lots, and again, every state is different.
Some allow employees to keep firearms in their locked and enclosed vehicles while parked on company-owned or leased property. However, employers may still have the right to prohibit employees from bringing a gun onto their work premises or keeping it in a company car.
On the other hand, some states have laws prohibiting employers from even inquiring whether an employee is storing firearms in their vehicle on company property or preventing employers from searching employees’ vehicles for weapons. If you want to create rules about storing firearms on employer property, especially if your business operates in multiple states, please consult an attorney to ensure you fully understand your legal rights.
When can an employer be held liable for workplace violence?
If an employer knowingly disregards potential dangers in the workplace and does nothing to address them, they can be held liable for resulting injuries. There are five primary areas of employer liability related to workplace violence: third-party liability, negligent hiring, negligent retention, negligent supervision, and negligent training.
The Office of Safety and Health Administration (OSHA) states that an employer could be liable for workplace violence if a victim or victim’s family can prove that the employer knew or should have known that violence could occur. To establish liability, it must be proven that:
- A hazard existed
- The employer or its industry knew the hazard existed
- The hazard was likely to cause death or serious bodily harm
- A feasible abatement method existed
For example, an employee makes verbal or written threats of violence towards coworkers, openly carries a gun in the office in defiance of concealed carry laws, or refuses to adhere to policies to ensure all employees' safety. If the employer ignored these warning signs and failed to take appropriate and immediate action (i.e., installing office security measures, firing the employee, reporting the threats to local law enforcement, or obtaining a restraining order) and an act of violence occurred, the employer could be held liable for subsequent acts of workplace violence.
A case in point is the lawsuit against MGM, owner of the site of one of America’s most deadly mass shootings in Las Vegas in 2017. The suit, ultimately settled for close to $800 million, alleged premises liability and negligence, among other claims, and stated that MGM failed to use industry-standard precautions, security measures, and other reasonable measures, thereby allowing the shooter to bring over 20 bags of firearms and ammunition to his hotel room and commit the horrific act of violence.
What measures should employers take to reduce the risk of workplace violence?
I highly recommend that employers implement preventive measures to reduce the risks around workplace violence and, by extension, their potential liability. Even if a weapons-free workplace policy is not legally possible, there are several key steps employers can take to identify, contain, and mitigate the risk of workplace violence, and thereby avoid potential claims of negligent hiring, retention, supervision, or training. They include:
- Strengthening employee background checks.
- Having a written code of employee conduct that details policies around weapons in the workplace and how to report threats of violence or harassment.
- Enforcing zero tolerance for violence or harassment.
- Offering employee assistance programs (EAPs) to help identify and support employees dealing with stress, substance abuse, or mental health issues that may lead to violent acts.
- Providing training on conflict resolution.
- Preparing an emergency response plan and scheduling regular practice and reviews of security and safety protocols to ensure they are functioning as intended.
- Determining if your state law allows for searches of employee lockers and personal property stored on employer property if a problem is suspected.
OSHA's website also offers many valuable tools for employers to help assess risk factors and develop guidelines, training and workplace violence prevention plans.
The issue of workplace violence is a serious concern for both employers and employees. Employers must take every possible precaution to reduce the risks of workplace violence through all legally permissible policies and preventive measures. By doing so, they can better protect their employees and minimize potentially damaging legal consequences.
FAQs on reducing workplace violence
What is the first step in managing workplace violence?
Employers need to be aware of potential issues or dangers in the workplace in five primary areas: third-party liability, negligent hiring, negligent retention, negligent supervision, and negligent training, and immediately address them if and when they arise.
What policies can be put in place to prevent workplace violence?
Employers can take several key steps to identify, contain, and mitigate the risk of workplace violence and avoid potential claims of negligent hiring, retention, supervision, or training. OSHA's website contains information and valuable tools to help employers prevent workplace violence and develop employee guidelines and training.
What are the liabilities of workplace violence?
If an employer knowingly disregards potential dangers in the workplace and does nothing to address them, then OSHA, a victim, or the victim’s family can hold the employer liable for resulting injuries.
About the Author
Post by: Liz Hartsel
Liz Hartsel is an employment lawyer who enjoys helping businesses and employees navigate labor and employment laws. She works with her clients to proactively mitigate the risk of future employment claims on both the front and back end. When litigation is unavoidable, Liz has experience representing both sides of disputes regarding discrimination, harassment and retaliation claims, wrongful termination, and wage and hour (FLSA) claims.
Company: Fortis Law Partners
Website:
www.fortislawpartners.com
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