When a threat of violence

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1 Employment Law Commentary Volume 18, No. 3 March 2006 Preventing and Responding to Threats of Workplace Violence By Judith Droz Keyes When a threat of violence enters the workplace, employers must act quickly. No one wants to over-react, but it is equally unwise to under-react. Taking steps to prevent violence is important. Equally important is having a response strategy in place before the threat occurs. Legal Duty to Provide a Safe Workplace Both the federal Occupational Safety and Health Act ( OSHA ) and California s counterpart ( Cal/OSHA ) contain a so-called general duty clause mandating employers to provide safe workplaces. 1 Neither law, however, sets forth specific standards or requirements addressing violence. As stated by the OSHA Directorate of Enforcement Programs, [T]he occurrence of acts of violence which are not recognized as characteristic of employment and represent random antisocial acts which may occur anywhere would not subject the employer to a citation for a violation of the OSH Act. Whether or not an employer can be cited for violation of [the general duty clause] is entirely dependent upon the specific facts, which will be unique in each situation. The recognizability and foreseeability of the hazard, and the feasibility of the means of abatement are some of the critical factors to be considered. 2 In 1995, Cal/OSHA published advisoryonly Guidelines for Workplace Security ( Guidelines ). 3 The Guidelines delineate three types of violent events in the workplace: Type I, where the perpetrator has no relationship with the workplace and enters to commit robbery or another criminal act; Type II, where the perpetrator is a recipient of the service provided by or in the workplace (such as a client, patient, customer, passenger, inmate, etc.); and Type III, where the perpetrator has some employment-related involvement with the workplace, usually either a current or former employee or someone who has a Continued on 2

2 m o r r i s o n & foerster llp In the absence of OSHA requirements, courts have identified other bases on which to find that employers have a duty to prevent Type III workplace violence, and that employees who are victimized by the employer s failure to fulfill that duty can sue for damages. Continued from 1 relationship with a current or former employee (such as a spouse, relative, or friend). Employers that are known to be at risk for Type I events, such as retail establishments and financial institutions, and Type II events, such as nursing homes and schools, have a special responsibility to take preventive measures that are beyond the scope of this Commentary. It is the random Type III event that is the focus here. In 2002, the Federal Bureau of Investigation s National Center for the Analysis of Violent Crime, part of the Critical Incident Response Group, published a monograph called Workplace Violence: Issues in Response ( Monograph ). 4 The result of a week-long symposium attended by more than 150 experts in the field, the Monograph presents the latest thinking and best practices, and is intended as a practical guide to businesses, small and large,... in implementing a proactive workplace violence prevention strategy. Other Bases of Legal Duty to Prevent Violence In the absence of OSHA requirements, courts have identified other bases on which to find that employers have a duty to prevent Type III workplace violence, and that employees who are victimized by the employer s failure to fulfill that duty can sue for damages. The most frequently seen claim is the negligent hiring or negligent retention claim, where courts have recognized a duty under the common law. Generally, employers are liable under these theories if either they knew that an applicant or employee was unfit and they employed him or her anyway, or they failed to use reasonable care to discover the unfitness. 5 When race, religion, or another protected characteristic is a basis for violence in the workplace, discrimination statutes and other civil rights protections provide an additional basis for employees to sue their employers. 6 And of course individual employees have rights to bring criminal charges or to sue their attackers for assault, battery, stalking, and the like, and employers can become part of, if not parties to, these suits if they knew of the threat or the behavior and failed to respond. Policies Prohibiting Violence and Threats of Violence As the Cal/OSHA Guidelines put it, many management consultants... stress that to effectively prevent type III events from occurring, employers need to establish a clear anti-violence management policy, apply the policy consistently and fairly to all employees, including supervisors and managers, and provide appropriate supervisory

3 employment law commentary and employee training in workplace violence prevention. This advice is reiterated in an OSHA Fact Sheet and in the FBI Monograph. 7 Most employers have adopted such policies; those that have not yet done so, should. 8 But adopting the policy is only the first step. Taking the policy seriously, including consistently enforcing it, is an additional, important, on-going obligation. 9 As an adjunct to no-violence policies, some employers have chosen also to other states, including California. 11 Oklahoma s law has been challenged in a lawsuit filed by about a dozen Oklahoma employers. 12 The court has enjoined enforcement of the statute during the pendency of the litigation, which is on-going and closely watched. Another strategy is challenging employer discipline of employees who violate no-weapons policies. In a well-publicized Utah case, three published and posted and the plaintiffs had accepted employment having been aware of it, the Utah Supreme Court ruled in favor of the employer. But cases like this continue to be filed. For the time being, employers in every state but Alaska and Indiana are entitled to adopt and enforce prohibitions against bringing weapons, including guns, onto company property. While there appears to be a adopt policies prohibiting weapons on company property. According to one study reported in the May 2005 issue of the American Journal of Public Health, workplaces where guns were permitted were 4.8 times more likely to experience a homicide as workplaces where weapons were prohibited. 10 According to one study reported in the May 2005 issue of the American Journal of Public Health, workplaces where guns were permitted were 4.8 times more likely to experience a homicide as workplaces where weapons were prohibited. No-weapons policies, however, are not without controversy. The National Rifle Association has launched a noholds-barred initiative against them. Among other tactics, the NRA lobbies state legislatures to ban such policies, arguing that they are unconstitutional and that they jeopardize public safety. Three states, Alaska, Indiana, and Oklahoma, have recently enacted such laws, and bills are pending in nine employees of America Online brought suit challenging the termination of their employment for their admitted violation of their employer s noweapons rule. 13 Pointing to the Utah Constitution, the plaintiffs argued that Utah s public policy protects their right to bear arms, even at work. Relying on Utah s policy of at-will employment and the fact that AOL s rule was sound reason for having such policies, they are being challenged, and their future remains uncertain. Avoiding Hiring Mistakes To avoid bringing dangerous employees into the workplace (and to avoid liability for negligent hiring), employers are motivated to identify and weed out applicants with a propensity for Continued on 4

4 m o r r i s o n & foerster llp Continued from 3 violence. Application forms typically ask applicants whether they have been convicted of a crime, and caution them that providing a false answer to this or any other pre-employment question will result in termination. While California limits what criminalhistory questions can be asked, and discrimination laws require that applicants be assured that answering yes will not automatically disqualify them, these questions have become commonplace. 14 Many employers also conduct background investigations on applicants, especially for sensitive positions. There are detailed procedural rules for obtaining these so-called consumer reports (see the Employment Law Commentary of January 2003), but so long as the rules are followed, these investigations can be done. It has generally been understood that either when an applicant selfidentifies as having been convicted of a violent crime, or when a background investigation discloses a history of violence, declining to hire that applicant, especially for It has generally been understood that either when an applicant selfidentifies as having been convicted of a violent crime, or when a background investigation discloses a history of violence, declining to hire that applicant, especially for an unsupervised position, is both prudent and lawful. an unsupervised position, is both prudent and lawful. That conventional wisdom is called into question, however, when the explanation for the violent past is a mental disability. As explained by the Equal Employment Opportunity Commission in its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, an employer can decline to hire an applicant whose history of violence is the result of a mental/psychiatric disability only if the disability renders the employee unqualified or the employer can prove that the applicant would pose a direct threat. 15 The U.S. Court of Appeals for the Ninth Circuit recently ruled against the employer, Pacific Bell, in just such a situation. 16 The facts are instructive. In 1998, PacBell hired Joshua Josephs for a position that involved performing unsupervised, in-home telephone installation and repair. Three months after his hire, PacBell received the results of a background investigation revealing that Josephs had been arrested in 1982 for attempted murder, was found not guilty by reason of insanity, and was committed to a mental hospital for two and a half years. In 1985, he had been convicted of a 1982 misdemeanor battery on a police officer. He was released from parole in He then changed his name and worked for ten years for another company, Cox Communications, in a position similar to the technician

5 employment law commentary position at PacBell before being hired by PacBell. Concluding that Joseph s violent past made him unsuited for the service technician position, PacBell terminated his employment. Josephs sought reinstatement, which was denied. He then sued, claiming he had been discriminated against on the basis of a perceived disability. The jury found that while the termination had been lawful, the failure of PacBell to reinstate Josephs after learning all the pertinent facts, was unlawful. PacBell appealed. The Ninth Circuit sustained the jury s award, finding that there was sufficient evidence to support the conclusion that PacBell had refused to rehire Josephs because the company perceived him to be disabled, that is, as having a mental condition that could lead to violence. The lesson from this case is clear, even if its implementation isn t. Employers are obligated to balance the duty to exercise reasonable care in screening out applicants who pose a risk of violence with the duty not to discriminate against applicants with mental disabilities or those who are perceived as having such disabilities. The balancing must be done on a factspecific basis, including actual evidence to have a plan in place, and to have sensitive. Hence, employers are advised of disqualification or threat rather than trained their managers (especially those simply the suspicion thereof. in remote locations and on night and week-end shifts) on how to respond, Responding to Threats of before the threat arises. Violence In the Type III situation that is the Assessing the Threat focus of this Commentary, the threat Sometimes the threat is clear and of violence typically surfaces in one of immediate. In that circumstance, a call two ways: (1) when an employee is to law enforcement is the likely first being or has been disciplined or fired step. However, if the threat is veiled or or laid off; and (2) when an employee amorphous, or if it is simply suspected The lesson from this case is clear, even if its implementation isn t. Employers are obligated to balance the duty to exercise reasonable care in screening out applicants who pose a risk of violence with the duty not to discriminate against applicants with mental disabilities or those who are perceived as having such disabilities. is involved in a potentially violent from the circumstances rather relationship outside the workplace. than from a statement or overt act, In either of these situations, when obtaining the assistance of a qualified the threat or risk of violence surfaces, professional to assess the situation is the need to respond is immediate and Continued on 6

6 m o r r i s o n & foerster llp Continued from 5 The consultant s ability to make the assessment will require as much in order. As concluded by the FBI in specific, objective information about its Monograph, [T]ypically, threat the situation as it is possible to compile. assessments will be conducted by a The assessment will ideally encompass psychologist or psychiatrist specifically all of the following: trained to evaluate a potential risk The exact nature and context of the of violence. Both legal concerns and threat. practical limitations often will render The identified target of the threat it inadvisable to seek threat assessment (general or specific). evaluation from an employee assistance In addition to obtaining as much specific information as possible about the threat and the threatener, a description and, if possible, a photograph of the threatener should be obtained. about the threat and the threatener, a description and, if possible, a photograph of the threatener should be obtained. Security personnel should be apprised of the situation, given the picture or description, and told whom to call if they observe the threatener in an inappropriate or unauthorized place. Security should be enhanced as needed, especially in parking lots. The police should be notified. Whether and what employees will be told about the situation is a decision that must be carefully weighed, balancing rights of privacy versus the need to know, and the duty to provide a safe workplace versus the need to maintain morale and productivity. program, security, or mental health professionals who lack training in this area. 17 Employers are advised to be proactive in identifying one or two qualified consultants who can be called in the face of a threat of violence. The contact information for these consultants is an important component of the violenceresponse plan. The threatener s apparent motivation. The threatener s ability to carry out the threat. The threatener s background, including work history and past behavior on the job. Managing the Threat In addition to obtaining as much specific information as possible If the situation is assessed to warrant it, a court-issued restraining order may be sought. While individual employees have the right under federal and state law to seek restraining orders against their stalkers and harassers, in California, employers have the right to petition for restraining orders on behalf of employees. 18 The California Judicial Council has created form pleadings for these petitions, and courts require employers to use them. Although employers originally could (and

7 employment law commentary routinely did) seek restraining orders on behalf of all employees in the face of a generalized threat, courts in recent years have required that the injunction be sought in the name of an individual employee or employees even when the terms of the injunction may be broad enough to protect the workplace generally. 19 Even though the petition process is reasonably straightforward, the trend is for courts to be circumspect in granting restraining orders, and even more so, permanent injunctions. Courts scrutinize the employer s petition to be sure there is clear and convincing evidence either that there has been violence or that there is a credible threat of violence and that the violence will likely continue in the absence of a restraining order. 20 The participation of the assessment consultant in preparing the declarations and other evidence supporting the petition can be an important component in its success. Summary In this time of heightened security in virtually all aspects of public life, it is worth remembering that it is every employer s general duty to take steps to prevent violence in the workplace, and effectively to respond to threats of violence should they occur. While the law continues to evolve, and while even violent individuals are not without legal protection, there are resources and protocols available to assist employers in fashioning prevention programs and response plans that are effective and suitable to their workplace OSHA states, Each employer... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;... (29 USC 654). Cal-OSHA provides, Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein, and No employer shall fail or neglect to do any of the following:... every other thing reasonably necessary to protect the life, safety, and health of employees. (California Labor Code 6400, 6403). 2 December 10, 1992 letter from Roger A. Clark to John R. Schuller, found on the web at oshaweb/owadisp.show_document?p_ table=interpretations&p_id=20951 (last visited March 26, 2006). 3 The Guidelines are available at ca.gov/dosh_publications/worksecurity.html (last visited March 25, 2006). 4 The Monograph is available at gov/publications/violence (last visited March 25, 2006). 5 See, e.g., Juarez v. Boy Scouts of America, 81 Cal. App. 4th 377, 395 (2000) ( an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee s unfitness before hiring him ); Federico v. Superior Court, 59 Cal. App. 4th 1207, 1214 (1997) (the employer is liable only when the employer knows, or should know, facts which would warn In this time of heightened security in virtually all aspects of public life, it is worth remembering that it is every employer s general duty to take steps to prevent violence in the workplace, and effectively to respond to threats of violence should they occur. a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed. See also Underwriter s Insurance Company v. Purdie, 145 Cal. App. 3d 57 (1983). 6 A recent California Court of Appeal decision confirms an employee s right to sue for violation of the Tom Bane Civil Rights Act, California Civil Code 51.7 and 52.1, if the employee is subjected to violence or intimidation based on race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute. Stamps v. Superior Court (Kenny-Shea- Traylor-Frontier-Kemper JV et al.),136 Cal. App. 4th 1441 (2006). 7 The Fact Sheet is available at osha.gov/oshdoc/data_general_facts/factsheetworkplace-violence.pdf (last viewed March 26, 2006). Continued on 8

8 m o r r i s o n & foerster llp This newsletter addresses recent employment law developments. Because of its generality, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Editor: Lloyd W. Aubry, Jr., (415) San Francisco Lloyd W. Aubry, Jr. (415) laubry@mofo.com James E. Boddy, Jr. (415) jboddy@mofo.com Judith Droz Keyes (415) jkeyes@mofo.com James C. Paras (415) jparas@mofo.com Linda E. Shostak (415) lshostak@mofo.com Palo Alto David J. Murphy (650) dmurphy@mofo.com Eric A. Tate (650) etate@mofo.com Raymond L. Wheeler (650) rwheeler@mofo.com Tom E. Wilson (650) twilson@mofo.com Los Angeles Sarvenaz Bahar (213) sbahar@mofo.com Timothy F. Ryan (213) tryan@mofo.com Janie F. Schulman (213) jschulman@mofo.com B. Scott Silverman (213) bsilverman@mofo.com New York Miriam H. Wugmeister (212) mwugmeister@mofo.com Washington, D.C./Northern Virginia Daniel P. Westman (703) dwestman@mofo.com Orange County Robert A. Naeve (949) rnaeve@mofo.com Steven M. Zadravecz (949) szadravecz@mofo.com San Diego Rick Bergstrom (858) rbergstrom@mofo.com Craig A. Schloss (858) cschloss@mofo.com Denver Steven M. Kaufmann (303) skaufmann@mofo.com Tarek F.M. Saad (303) tsaad@mofo.com London Ann Bevitt abevitt@mofo.com David C. Warner dwarner@mofo.com If you have a change of address, please write to Chris Lenwell, Morrison & Foerster llp, 425 Market Street, San Francisco, California , or him at clenwell@mofo.com Morrison & Foerster LLP. All Rights Reserved. Continued from 7 8 The following is the essence of a suitable policy: The Company does not tolerate workplace violence. We define workplace violence as any verbal or physical conduct in the workplace or directed at employees that threatens property or personal safety, or that reasonably could be interpreted as a threat or an intent to cause harm to property or personal safety. All employees are expected promptly to report any incident of workplace violence to their supervisor or manager, or to Human Resources. All such reports will be taken seriously, and will be investigated. 9 [E]mployers should make clear that zero tolerance in the original sense of the phrase applies that is, no threatening or violent behavior is acceptable and no violent incident will be ignored. Company violence prevention policies should require action on all reports of violence, without exception. (FBI Monograph, at p. 29.) 10 Employer Policies Toward Guns and the Risk of Homicide in the Workplace, Loomis, Marshall and Ta, American Journal of Public Health, Vol. 95, No. 5, pp (May, 2005). 11 See Daily Labor Report, March 27, 2006, p. AA-1. States where bills are listed as pending, in addition to California (A.B. 1912), are Alabama, Florida, Georgia, Missouri, New Hampshire, Tennessee, Utah, and Virginia. In Wisconsin, a bill that was enacted was vetoed by Gov. Jim Doyle (D). 12 Conoco v. Henry, Case No. 04-SV-820- TCK-PJC (N.D. OK). See Guns at Work: A Guide to the Shifting Legal and Political Landscape, Joshua Horowitz and Casey Anderson, Bender s California Labor & Employment Bulletin, January 2006, pp Hansen v. America Online, 2004 UT 62 (2004). 14 Except for peace officers and certain health care workers, California Labor Code sections and prohibit inquiry into arrests that did not result in conviction and convictions for specified marijuana offenses more than a certain number of years old. Because requiring a conviction-free past may disparately impact minorities, employers are expected to consider an applicant s criminal history on a case-by-case basis, weighing all the relevant factors. See, e.g., Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971). 15 EEOC Enforcement Guidance on the Americans with Disabilities Act, March 25, 1997, available at psych.html (last viewed March 26, 2006). The proof of direct threat must be based on an individualized assessment of the individual s present ability to safely perform the functions of the job, considering the most current medical knowledge and/or the best available objective evidence. To find that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose a direct threat. This includes an assessment of the likelihood and imminence of future violence. 16 Josephs v. Pacific Bell, 432 F.3d 1006 (9th Cir. 2005). 17 FBI Monograph, at page California Code of Civil Procedure See, e.g., USS-Posco Industries v. Edwards, 111 Cal. App. 4th 436, 438 (2003) ( [A]n employer subjected to generalized threats of workplace violence may obtain relief... on behalf of an employee who is a logical target of the threats, even if the employee was not specifically identified by the harasser. ). 20 See, e.g., Scripps Health v. Marin, 72 Cal. App. 4th 324 (1999); cf. City of Los Angeles v. Animal Defense League, Cal. App. 4th (2006) (anti-slapp statute applied to petition for restraining order arising out of a raucous nighttime protest at the home of a City employee, so injunction denied) Judith Droz Keyes is a partner in the firm s San Francisco office and can be reached at or JKeyes@mofo.com.