Special from BLR’s National Employment Law Update
Violence is often unpredictable, but there are actions HR can take to minimize the risk and to defuse the situation if violence does threaten, say attorneys Robert E. Bettac  and Anthony L. Martin.

Their remarks came at BLR’s National Employment Law Update, held recently in Las Vegas. Bettac and Martin are partners in law firm Ogletree Deakins, Nash, Smoak & Stewart, P.C., Bettac in San Antonio and Martin in Las Vegas.

What is Workplace Violence?

Martin offers several definitions:

  • Strict Definition—Physical attack or assault resulting in death or physical injury of an employee in a place of business.
  • Liberal Definition—Any of the above, plus any language or actions in the workplace that make an employee reasonably fear for his or her personal safety.
  • National Institute for Occupational Safety and Health (NIOSH) Definition—Violent acts, including physical assaults and threats of assault, directed toward persons at work or on duty.

Forms of Workplace Violence

Be aware that workplace violence can come in many forms, says Martin.

  • Stranger Attacks Employee
  • Current/Former Employee Attacks Employee
  • Spouse/"Friend" Attacks Employee
  • Customer Attacks Employee
  • Customer Attacks Customer
  • Employee Attacks Customer

What Does Workplace Violence Look Like?

Experts define three stages of violence, Martin says:

Stage One Violence — Early Potential

  • Objectifying and dehumanizing others
  • Challenging authority
  • Regularly becoming argumentative
  • Alienating customers and clients
  • Originating and spreading lies about others
  • Swearing excessively; using sexually explicit language
  • Abusing others verbally
  • Sexually harassing others

Stage Two Violence — Escalated Potential

  • Arguing frequently and intensely
  • Blatantly disregarding organizational policies and procedures
  • Stealing from the company or from other employees; vandalism (property destruction)
  • Making verbal threats
  • Conveying unwanted sexual attention or violent intentions by letter, voice mail, or e-mail
  • Holding others responsible (blaming others)

Stage Three Violence—Realized Potential

  • Fights (or invitations to fight)
  • Displaying weapons (guns, knives, pepper spray, etc.)
  • Committing or attempting to commit assault, sexual assault, murder, arson, or suicide.

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Warning Signs of Violent Behavior

Martin indicates the following as potential signs of violent behavior:

  • Fascination with weapons
  • Substance abuse
  • Severe stress
  • Violent history
  • Severe changes in psychological functioning
  • Decreased or inconsistent productivity
  • Social isolation and poor peer relationships
  • Poor personal hygiene
  • Drastic changes in personality

General Profile—Potentially Violent Employee

While anybody could potentially be violent, there is a general profile:

  • Middle-aged male
  • History of violence or interpersonal conflicts (including domestic problems)
  • Preoccupation with violent images and weapons
  • Identification with violent perpetrators
  • Substance abuse
  • Psychological problems (e.g. paranoid disorders)
  • Loner, sense of injustice, or chronically disgruntled
  • Changes jobs frequently

Warning Signs

More direct indicators of potential violence are:

  • Ominous threats
    • "Bad things are going to happen..."
    • "That propane tank in the back could blow up easily …
  • Threatening Actions
    • Attempts to instill fear in co-workers
    • Menacing gestures
    • Flashing concealed weapons
  • Bizarre comments
    • "The world is falling apart ...
    • Fascination with violent incident
  • Obsession
    • Grudges
    • Unrequited romantic interest

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Impediments to Maintaining a Safe Workplace

Several impediments stand in the way of HR managers trying to maintain a safe workplace, says Bettac.

  • Legal Impediments
    • FCRA and state statutes limiting background checks
    • State & federal privacy laws restricting searches and surveillance
    • Defamation laws sometimes discouraging candid references
    • ADA prohibiting pre-hire inquiries into medical or psychological histories
  • Practical Impediments
    • Interest in giving criminal convicts a second chance
    • Unpredictability of human nature
    • Cost of background checks, testing, security measures, and EAPs

Potential Liability

Liability for workplace violence can come from several directions, Bettac warns.

  • Company liability to employees
    • Workers’ Compensation
    • OSHA liability under the "General Duty" clause
  • Company tort liability to third parties who are victimized
    • Respondeat superior
    • Negligent hiring, retention, supervision
  • Claims by the accused
    • Defamation, intentional infliction of emotional distress
    • Violation of the collective bargaining agreement/NLRA
    • False imprisonment
    • Malicious prosecution/abuse of process
    • ADA and other statutory claims

In tomorrow's Advisor, Martin and Bettac on how to meet with a potentially violent employee, and an introduction to the one-stop website that help with violence and just about every other HR issue.

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