Which of the following occurs when an employee is assaulted or endangered such that physical and psychological injuries may occur?

The Risk

Workplace violence needs to be seen as a risk that requires implementing risk-based programs, such as risk assessment. The assessment, which should be a specific workplace violence assessment, will provide an understanding of the likelihood of a possible workplace violence threat and recommended solutions. If companies do not accept and acknowledge the possibility of a violent incident occurring at worksites, signs of potential problems will be missed—as will the chance to develop solutions to avoid it.

So what would cause companies to make workplace violence a serious component of their strategic management initiative? To be successful in delivering a solid workplace violence prevention program, senior management must be totally committed to it.

What is workplace violence?

Workplace violence is now recognized as a specific category that calls for distinct responses from employers, law enforcement, and the community. This recognition has developed over the past 25 years.

On August 20, 1986, a part-time letter carrier named Patrick H. Sherrill, facing possible dismissal after a troubled work history, walked into the Edmond, Oklahoma post office where he worked, and shot 14 people to death before killing himself. Though the most deadly, the Edmond tragedy was not the first episode of its kind in this period. In just the previous 3 years, four postal employees were killed by present or former coworkers in separate shootings in Johnston, South Carolina; Anniston, Alabama; and Atlanta, Georgia. The shock of the Edmond killings raised public awareness to the kind of incident now most commonly associated with the phrase “workplace violence”—murder or other violent acts by a disturbed, aggrieved employee or ex-employee against coworkers or supervisors. An early appearance of the phrase itself in Nexis, a database of articles in many major U.S. newspapers, was in August 1989, in a Los Angeles Times account of yet-another post office shooting.

Today, mass murders in the workplace by unstable employees have become media-intensive events. In fact, the apparent rise in such cases may have been an impression created by this increased media attention. Still, the frequency of episodes following the Edmond post office killings was startling. In Southern California alone, one summary showed, over an 8-year span from mid-1989 to mid-1997, there were 15 workplace homicide incidents, six with multiple victims that killed 29 people. (Source: U.S. Department of Justice, Federal Bureau of Investigation) In subsequent years, major workplace crimes across the country included four state lottery executives killed by a Connecticut lottery accountant (March 1998); seven coworkers killed by a Xerox technician in Honolulu (November 1999); seven slain by a software engineer at the Edgewater Technology Company in Wakefield, Massachusetts (December 2000); four killed by a 66-year-old former forklift driver at the Navistar Plant in Chicago (February 2001); three killed by an insurance executive at Empire Blue Cross and Blue Shield in New York City (September 2002); three killed by a plant worker at a manufacturing plant in Jefferson City, Missouri (July 2, 2003); and six killed by a plant worker at a Lockheed-Martin aircraft plant in Meridian, Mississippi (July 8, 2003). (The Chicago, New York, Mississippi, and Connecticut shooters killed themselves. In the Honolulu and Massachusetts cases, the shooters went to trial. Both pleaded insanity but were convicted, and both received the same sentence of life in prison without parole.)

Policy

A policy on workplace violence is developed at senior management level. It is a broad-brush statement that serves as a template for development of a plan that will make the policy functional. At a minimum, a workplace violence policy should:

State the organization’s right and obligation to ensure a workplace free of violent behavior.

Use examples to show what is meant by violent behavior.

Define terms to avoid misinterpretation and create escape holes that could defeat intent or precipitate litigation.

Demonstrate an organizational commitment to deny employment to applicants with a history of violence and to weed out employees who engage in violent behavior. The policy can, for example, require background inquiries of job applicants and automatic dismissal of employees who commit serious acts of violence.

Require and encourage policy compliance by all employees.

Critical Thinking Exercise

Muriel, 62-years old and a 15-year employee with a convenience store chain, knew by name all of the regular customers at her corner store. She was attentive to her job and took pride in holding shoplifting losses to a minimum and maintaining an accurate till. During an audit by a security department investigator, she boasted that she had only once been short in the till and that to keep her good record intact she had made up the shortage out of her own pocket.

Muriel explained a man she did not know entered her store just before closing time. After ensuring that he was the only customer, the man produced a gun and forced Muriel to give him the content of the till, amounting to slightly more than $50. Later, when talking to the company’s security investigator, Muriel said she was going to buy a gun and keep it under the counter. “Ain’t nobody gonna rob me no more,” she said. The security investigator informed her that company policy prohibited guns on store premises and that the proper response to a robber’s demand was to cooperate and surrender whatever the robber wanted. Muriel replied that she understood the policy but “damn sure didn’t like it.”

A week later, right at closing time, the same robber returned and demanded she hand over the money. Muriel reached into the till, removed a handful of bills, and threw them in the robber’s face. When the robber bent down to pick up the money, Muriel lifted a heavy bottle of dill pickles from the counter in front of her. She crashed the bottle on the back of the robber’s head. He stood up, shot her in the neck, and cleaned out the rest of the till before fleeing.

Muriel recovered but the company did not allow her to return as a store employee. After two months as a file clerk in the company’s accounts payable department, Muriel quit and applied for social security benefits.

Did the security investigator act appropriately? Was there anything else the investigator could have done? Was Muriel correct in attempting to thwart the robbery?

Every policy must have a plan. The purpose of a plan is to execute policy. Whereas a policy is broad, a plan is detailed. Persons assigned to develop the plan usually work as a team, and a member of the team is certain to be the CSO. The main elements of a plan should be to:

Describe how the organization will monitor and enforce compliance. An important element here is to ban lethal weapons at work and to express management’s right to look for weapons at entry points and on the premises.

Assign specific responsibilities to key persons such as the CSO, head of human resources, and chief safety coordinator.

Assign general responsibilities such as requiring employees to report indicators or incidents of violent behavior.

Name consequences for noncompliance (e.g., suspension or termination).

Report violations. However, avoid a zero-tolerance position because every case will have its own unique set of circumstances. Also, zero tolerance can discourage employees from reporting violent behavior. An employee’s desire may be to get a coworker’s behavior stopped, but not get the coworker disciplined or fired. As a result of the failure to report a violation and set off the intervention that follows, a major incident can cause innocent persons to be injured or killed.

Identify training and the people to be trained.

Name employee assistance benefits such as services available to victims of violence and psychiatric counseling of violators.

A plan will place everyone on notice that violence is not acceptable and will be dealt with in every case. This simple message can be conveyed in a variety of formats such as memoranda, bulletin board and electronic messages, employee handbooks, and as an agenda item at employee meetings.

The wide variation in violent behaviors does not allow definitive predictions of likely incidents. The best that can be done is to identify broad scenarios, e.g., incidents involving actual death or injury, incidents involving lethal weapons, arguments, threats, intimidation, verbal assaults, and bullying. Alternatively, a single scenario could be developed to deal with all incidents. Fig. 20.1 is a checklist for developing a generic plan.

Primary among the objectives of a plan is to develop a simple system for ensuring that all incidents of violence, whether large or small, are reported and documented. Capozzoli and McVey (1996) say that it doesn’t matter if an incident is actual or threatened, it must be fully documented.

The reporting channels can include hotlines, supervisors, human resource specialists, and a conspicuously posted phone number that connects to the security desk.

The credibility of the reporting system rests on its record, i.e., employees will make reports when they believe that reports will be handled quickly and effectively. The reporting system breaks down when reports have no follow through, are handled improperly, and when the promise of confidentiality is breached. Also, important to the success of any reporting system is management’s encouragement to report incidents and not reveal the identity of persons making reports.

Introduction

This chapter investigates the questions of foreseeability, standards of care, and causation in negligent security claims pertaining to workplace violence. “Workplace violence” is a broad category of diverse activities and impacts related to occupational exposure to violence. The Occupational Safety and Health Administration (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” (U.S. Department of Labor, 2018). ASIS International, the world’s largest membership organization for security management professionals, defines workplace violence as a “spectrum of behaviors—including overt acts of violence, threats and other conduct—that generates a reasonable concern for safety from violence” (ASIS International, 2011b, pp. 3, 5). This definition assumes “a nexus exists between the behavior and the physical safety of employees and others (such as customers, clients, and business associates), on-site, or off-site when related to the organization” (2011, pp. 3, 5). According to this definition, workplace violence is not limited to on-site physical attacks and can include threats of assault. Moreover, the victim or target of violence can be anyone, so long as a nexus exists to the workplace. The victim or target can be an employee, a visitor to the workplace, or an attendee at an organization-sponsored event.

Liability and legal issues related to workplace violence can be complicated and complex (Lies, 2008; Chappell and Di Martino, 2006). Federal and state laws and statutory considerations can intertwine with both criminal and civil remedies and rights depending on who is the offender and who is the victim (e.g., employer, coworker, contractor, or customer). Different states have different statutes related to workplace violence and federal regulations require employers to comply with occupational safety and health standards (ASIS International, 2011b, pp. 50–54). Under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, OSHA requires employers to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to … employees.”1 A 2011 Directive permits OSHA to investigate all incidents of workplace violence, whether they involve fatalities or not, including a determination of whether the employer used the most effective, feasible controls available to protect its employees from acts of workplace violence (U.S. Department of Labor, 2011). To cite an employer for violating the General Duty Clause, the Secretary of the U.S. Department of Labor must prove all four of the following: (1) the employer failed to keep the workplace free from a hazard that employees were exposed to, (2) the hazard was recognized, (3) the hazard was likely to cause death or serious physical harm, and (4) there was a feasible and economically viable way to correct the hazard (American Bar Association, 2014).

An employer will be on notice of the risk of workplace violence if the workplace has experienced past acts of violence (actual notice) or the employer becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists (constructive notice) (Hargrave, 2001; Litwack and Schlesingerm, 1999). Employers are not strictly liable for workplace violence under the OSH Act and OSHA has not issued any formal standards on workplace violence. Whether an employer is liable under the General Duty Clause for an incident of workplace violence depends on the facts of the case.

As we point out in this chapter, liability of employers for violent criminal acts at the workplace is rapidly evolving as plaintiffs and defendants challenge traditional defenses to negligence, such as an unforeseeable event or superseding cause, in workplace violence cases. Sometimes, the employer, as opposed to the perpetrator, is the one that victims and their families may attempt to hold civilly responsible. In the context of workplace violence, employers as well as perpetrators potentially may be liable to employees and third parties. Liability may be direct or vicarious, and the price of liability can run high, since punitive damages may be allowable for the “willful, wanton, or reckless disregard for the safety of others.”2 Civil liability cases on workplace violence can include negligent hiring and retention. Premises owners that do not have a workplace violence and intervention program in place could be subject to liability. Even if an organization has a workplace violence program, plaintiff’s attorneys and experts may attempt to attack the program if there is nonexistent employee training, orientation, and comprehension (Security Executive Council (SEC), 2018).

Moreover, since the 1980s, mass casualty events and domestic terroristic attacks have generated a considerable amount of litigation surrounding workplace violence. A series of shootings by U.S. postal workers during the late 1980s and early 1990s precipitated research on workplace violence and mass casualty events (U.S. Postal Service Commission on a Safe Secure Workplace, 2000). On August 20, 1986, postman Patrick Sherrill walked into his workplace, shot and killed 14 coworkers and injured six more people before shooting himself in the head. On October 10, 1991, a former U.S. postal worker, Joseph Harris, killed two employees at a post office in Ridgewood, New Jersey. These well-publicized events focused public and research attention on workplace violence, resulting in the widely used slang phrase, “going postal,” which typically denotes an employee losing control over his or her emotions and engaging in violent acts against coworkers. Since the 1980s, there have been hundreds of people killed or injured in workplace violence and other mass casualty incidents. The October 2017 mass shooting at a country music concert in Las Vegas was the deadliest attack on U.S. soil since the September 11, 2001 attacks on New York and Washington, D.C. Other mass casualty events, such as Virginia Tech (2007), Columbine (1999), Sandy Hook (2012), Aurora movie theater (2012), and Parkland, FL (2018), have attracted much media attention and spawned protracted litigation.

Workplace violence litigation claims are heterogeneous and can involve a variety of claims and allegations, injuries, legal arguments, and legal obligations. Employees can inflict a considerable amount of violence on customers, patients, students, coworkers, or others with whom they come into contact. Unless a defendant employer can establish certain interactions are clearly “beyond the scope of employment,” injured plaintiffs may sue employers when their employees attack a customer, sexually assault a student, patient, or guest, or misrepresent security levels at a property. Plaintiffs may sue an employer for the actions or inactions of independent contractor employees such as housekeeping personnel and security personnel under the notion of “nondelegable duty.” Over the decades, victims of workplace violence have attempted to sue contract security companies for somehow failing to prevent an irate patient or armed student from entering the premises. Plaintiffs have accused security officers at government offices and manufacturing facilities of failing to prevent armed workers from entering and shooting ex-lovers, fellow workers, and former supervisors.3 Just as the circumstances and targets of workplace violence vary, so do offender motivations and the collateral impacts and socio-spatial consequences of violent incidents in workplaces.

A broad range of negligent security lawsuits may be included under the general heading of workplace violence. In some 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 of premises liability generally, or claims based on duties that arise when the employer has a “special relationship” with either the individual who is the perpetrator of violence or the person who is at risk from violence. If an employee commits an act of workplace violence then the courts may not hold the employer 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. In other cases, the employer may have liability for its own acts or omissions. Courts may hold an employer liable for negligence under the theories of negligent hiring or retention if the employer hired or retained an employee who was or should have been known by the employer to be dangerous. These theories of negligence may also apply if an employer could have learned of the employee’s dangerous tendencies through a routine investigation but failed to do so.

Our discussion of workplace violence in this chapter is by no means exhaustive or comprehensive. Rather, our reportage of various cases and liability trends represents a partial and incomplete introduction to the vast area of workplace violence litigation that has changed dramatically over the decades (Dolan, 2000; Piccarello, 2005; Creed, 2007; Davis, 2000; Elzen, 2001). We first identify the various types of workplace violence and discuss current research on the extent, costs, and causes of workplace violence incidents. We then present a case of sexual assault in the workplace and describe the various challenges victims of workplace violence face in seeking compensation from employers. Next, we examine how a forensic criminologist would address issues involving foreseeability, standards of care, and causation in cases involving mass shootings. Public mass shootings, also known as “active shooter incidents” or “rampage shootings,” are a particularly unusual type of workplace violence homicide. Mass shooters not only kill specific targets, but they also shoot random strangers or bystanders in workplaces that are also schools, theaters, malls, concerts, restaurants, or shopping centers (Lankford, 2016a; Newman et al., 2004). These attacks tend to generate a great deal of media coverage, public fear, and political debate because, hypothetically, anyone could be the next victim (Duwe, 2007). We then discuss a case involving a mass shooting at an automobile plant in which the shooter committed suicide. Finally, we consider the evolving nature of terrorist threats and mass casualty events and explain their potential impact on foreseeability approaches, standards of care, and liability judgments.

OSHA

OSHA defines workplace violence as violence or a threat of violence against workers. It can occur at or outside the workplace and can range from threats and verbal abuse to physical assaults and homicide. Homicide is one of the leading causes of job related deaths.

Workplace violence is such a threat and serious enough that OSHA issued a directive on workplace violence on September 8, 2011.2 This “directive” outlines enforcement procedures for OSHA field officers to help them investigate employers for alleged workplace violence. OSHA’s general duty clause requires employers to maintain a workplace that is free from recognized hazards that cause or are likely to cause death or serious physical harm. OSHA can cite and fine employers for failing to provide workers with adequate safeguards against workplace violence after an investigation. This directive doesn’t require OSHA to respond to each complaint or incident related to workplace violence but it does help provide guidance for field officers to help determine whether an investigation should be pursued and if a citation is appropriate. This directive is an initiative on OSHA’s part to examine the issues surrounding workplace violence. Although OSHA issued guidelines for preventing workplace violence for health care and social service workers in 1996 and late-night retailers and tax drivers in 1998, few citations were ever publicized after these guidelines were put in place. In recent years, there has been a heightened interest in the subject of workplace violence and OSHA has fined and cited employers on the basis that death or physical harm was likely to result from hazards that the employer knew or should have known about. Violence in the workplace has had devastating effects on businesses, both financially and in lost lives. Employers have a legal and moral obligation, along with the responsibility, to provide a safe and secure work environment. Every day thousands of employees are subjected to workplace violence in one form or another. Workplace violence includes any use of physical force against or by a worker that causes or could cause physical injury, threatening behavior, harassment, veiled threats, and intimidation. It also includes anger-related incidents, rape, arson, property damage, vandalism, and theft. Incidences can occur at off-site business-related functions like conferences, trade shows, social events, or meetings, but we refer to it as workplace violence because it takes place at work.

The US Bureau of Labor Statistics reported that assaults and violent acts, including homicides, accounted for 18% of the overall fatal work injuries in 2010.3

When talking about the legal responsibility or duty of employers to safeguard employees, customers, and others from preventable harm, we also need to keep in mind the employer’s obligation to respect employee rights and appropriate management of these investigations. Having recognized the possibility of workplace violence is the first step in planning and mitigating such an event when it occurs.

What the CSM and Security Managers Can Do To Prevent Workplace Violence

Workplace violence can be prevented. Although it is not a direct responsibility of the CSM, the CSM must be an active participant in activities related to workplace violence. After all, employees are valuable IWC assets. The IWC CSM reasoned that IWC management must be aware of potential violence indicators, be trained to deal with these indicators, and to respond promptly and properly in an effort to work out the problem. The CSM must have a high degree of confidence in the determination of executive leadership to support the security staff and others in the handling of potential workplace violence situations. The CSM was directed that as part of the WPVPP all IWC employees should be made aware that the zero-tolerance policy is real and will be enforced. The WPVPP included a series of actions that managers can do to effectively help prevent situations of workplace violence:

Learn to recognize and document the signs of a significant behavior change.

Listen to employees and be receptive to hearing their work-related and personal concerns.

Establish an environment in which employees can express themselves in a confidential setting.

Know the appropriate actions to take and the support systems available to help deal with potential workplace violence problems.

Seek advice from security, human resources, and an EAP specialist to discuss any concerns regarding individuals who pose a potential threat.

Consult with human resources on disciplinary action in threats of violence situations and ensure appropriate action is taken.

Promptly notify human resources and security of any reports or threats of violence and of any reported restraining orders.

Work with security to ensure all alleged, reported, or potential threats of violence are investigated and assessed.

Introduction

This chapter will examine how work done to mitigate workplace violence in the past has influenced insider threat programs today. Historically, workplace violence and insider threat have been viewed as separate issues, partially because they lead to different types of investigations, and also because the insider threat has, in the past, had a focus on counterintelligence and counterespionage. Both risks, however, have a similar etiology when an individual begins to move along a continuum of idea to action. Through the use of technology and analytics today, we have the ability to capture and identify behavioral anomalies much earlier. The process of detecting these behavioral anomalies—whether they indicate a traditional insider threat or workplace violence—is the same. The mitigation of these two risks, therefore, can be brought together under one program initiative.

Workplace violence continues to be a priority issue for organizations around the world who have put an enormous focus on mitigating this dangerous threat. Workplace violence statistics from the past years reveal sobering realities about our society, the human condition, and the danger that exists in the workplace. These statistics, which have remained constant in recent years, show that nationwide, workplace violence remains the number one cause of death in the workplace for women, and number two for men. Men are three times more at risk for workplace homicide than women. Workplace violence is the number one cause of death for African American, Asian/Pacific Islander, and Latino employees in the workplace. It is estimated that nationwide, 900 to 1,000 deaths per year are caused by workplace homicide and that 20 workers are murdered each week. Overall, it is believed that these statistics are considered to be underreported by 25% to 50%.1

Looking at workplace violence through a historical lens, many positive strides that have been made to mitigate workplace threats have probably saved many lives. In fact, programs to prevent, detect, and respond to workplace violence have functioned as the foundation for the development of insider threat programs in both the government and the private sector today. The basic components of these programs, which will be described further below, include an emphasis on policy and training, background investigations, termination procedures, and attention to the employee life cycle. Additionally, the initiatives to conduct workplace violence threat assessment led to the development of working teams composed of diverse resources from within an organization. These threat assessment teams can be viewed in a similar light to today’s insider threat working groups which govern holistic and proactive anomaly detection programs to identify insider threats such as workplace violence or the loss of proprietary or protected information.

Workplace Violence

Workplace violence is any violence that occurs in a workplace. It can range from threats and verbal abuse to physical assaults and homicide. Workplace violence is a leading cause of job-related deaths globally. It is not reserved for robberies but can occur anywhere. Workplace violence is not only gain motivated but can be motivated by disagreement with the service the employee is providing (for example, cutting off electricity because of unpaid bills) or dissatisfaction with the company and its services. Some occupations are particularly at risk, especially those handling cash and goods or providing services to the public: community workers such as inspectors; gas, electricity, and water utility employees; and taxi drivers, especially if they work alone, in small groups, at night, or in high-crime areas.

The key to defending employees from workplace violence is first to acknowledge that it happens. The strategy should include risk assessments and should provide workplace violence prevention programs including trainings for employees such as awareness, reaction to threats, keeping a low profile, breaking routine whenever possible, and so forth. However, in certain cases, global positioning system panic buttons and other electronic safety devices can be considered as well as, for instance, procedures that obligate endangered employees to work in pairs, and special measures for working at night or in high-crime areas.

Abstract

Workplace violence is becoming the highest risk for injury or death on the job. According to the Occupational Safety and Health Administration's General Duty Clause, employers shall furnish each employee a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. In this chapter we will discuss workplace violence indicators, warning signs, and, most important, how to assess your workplace for risks and vulnerabilities related to violence. Also included is information on establishing a threat assessment team, prevention strategies, training, and liability reduction considerations.