Steps to Reduce Conflict, Prevent Violence in the Workplace

Violence in the workplace is one of several concerns when you have conflict between employees. HR professionals need to take complaints and investigations seriously to ensure that situations don’t escalate, and they also need to be sure that safety and other legal obligations are being met.

In a BLR webinar titled “Workplace Conflict Resolution: Peacekeeping Tools for HR
and Supervisors,” Eve Framinan and Jonathan E. O’Connell outlined some instances where conflict can implicate potential legal liability, and they also gave some guidance on employer obligations to maintain a safe workplace.

When Does Conflict Implicate Potential Legal Liability?

During the webinar, O’Connell noted that it is important “to manage conflict with a recognition that there are protected categories.” Here are the ones protected by Title VII, the Age Discrimination and Employment Act (ADEA), and the Americans with Disabilities Act (ADA):

• Pregnancy
• Age (40+)
• Disability
• Genetic Information
• Citizenship
• Uniformed Armed Services

There are also local laws that may add categories to this list, so be sure to know your local regulations.

When conflicts arise involving these protected categories, they typically take the form of “hostile work environment” harassment allegations. O’Connell noted “it’s important though to recognize that there is a difference between a hostile environment (for example, an employer gives an employee a tight deadline to turn in a proposal) and a hostile work environment based on a protected category. The term “hostile work environment” has a very particular meaning within the case law surrounding these protected categories and it’s a very high standard to meet.”

HR professionals should recognize this fact and keep it in mind when documenting complaints. It’s important when creating internal documentation not to use language that would create a legal liability if it doesn’t already exist. It’s also important to consider the “protected” status of all parties involved, not just the individual complaining.

Additionally, under relevant discrimination statutes, employers can be held liable for the conduct of supervisors, co-workers, customers, vendors, etc. For employers to protect themselves, Framinan noted “we can really help by building policies that address the different categories–policies around the interactions between co-workers, customers, between our employees and vendors.”. But training for both employees and supervisors is also important, she notes. Employers should:

• Exercise reasonable care to prevent and correct promptly any unlawful behavior. This is one of the first steps to deterring violence in the workplace.
• Create and distribute clear policies and procedures for employees to report what they may consider to be unlawful behavior directed toward them or a co-worker.
• Train all employees and supervisors.
• Investigate all complaints.
• Have and consistently follow disciplinary procedures.

Employer Obligations to Maintain a Safe Workplace

Employers have a legal obligation to provide a workplace that is reasonably free from harm; and to take reasonable steps to ensure the individuals they employ and do business with will not cause harm to other employees. These duties are contained in a variety of federal and state safe workplace laws, as well as common law negligence standards.

One example of such legal obligation comes from the federal Occupational Safety and Health Act (OSHA). Pursuant to OSHA’s General Duty Clause, employers have a responsibility to safeguard employees from recognized hazards which may cause serious physical harm or death. They’ve published guidelines for preventing violence in the workplace at health care facilities and retail establishments, among others.

Preventing violence in the workplace extends to the obligation to protect workers from individuals who have demonstrated a propensity to behave violently towards others. O’Connell noted that “there are a number of claims that can be asserted against employers for the conduct of their employees. There’s negligent hiring claims, negligent supervision claims; these are typically asserted by third parties . . . if an employer failed to perform due diligence and investigate a particular employee’s background, and he had a propensity for or a pattern of committing workplace assaults in the workplace and he assaults a customer, that customer may potentially have a claim for negligent hiring against the employer.”

What Can Employers Do to Prevent Violence in the Workplace and Reduce Conflict?

If you want to prevent violence in the workplace and try to minimize conflict, there are several steps you can take to enhance workplace security:

• Limit access to work areas to employees and authorized visitors only
• Install alarms and surveillance cameras where appropriate
• Train supervisors and employees in conflict resolution and non-violence techniques
• Conduct thorough background investigations on job applicants
• Offer career counseling and outplacement for employees whose employment has been involuntarily terminated, which can calm former employees and keep your workplace safer
• Referral to EAP

That said, there are also some things that you cannot do, such as:

• Ask applicants directly about prior arrests not resulting in convictions or use convictions as a basis for denying employment without considering the circumstances
• Conducting pre-employment polygraph tests is generally prohibited
• Ask applicants about medical or workers’ compensation history

Eve Framinan, TPO’s President and CEO, combines business experience, equanimity and a passionate belief that people are the best, and in some cases the only true way to differentiate her clients in their marketplaces.

Jonathan O’Connell, an associate with Holland & Knight, practices primarily in the area of labor and employment litigation. His experience includes representing management clients in matters involving claims of racial and sexual discrimination, wrongful discharge claims, federal and state wage and hour compliance, enforcement of non-competition, non-solicitation and confidentiality agreements, and collective bargaining agreements.