The Colorado Lawyer
Vol. 29, No. 1 [Page 17]
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Violence and the Workplace: Conference to be Held February 17, 2000
by Barbara McDonnell
The Colorado Attorney General’s Office, Colorado Bar Association, and other public and private sector organizations are sponsoring a one-day conference on workplace violence. The conference is scheduled for Thursday, February 17, 2000, at the Arvada Center, and is designed to raise awareness of the impact, warning signs, and frequency of workplace violence; educate employers about appropriate response and prevention strategies; spur employers to take action to address this issue; and provide resources and materials that effectively address violence prevention. The conference will be certified for continuing legal education credits. Conference program highlights and the conference agenda are printed at the end of this article. The registration fee is $85 through February 4, 2000, and $95 thereafter. To register, contact: CLE in Colorado, Inc. at (303) 860-0608.
This article highlights topics to be addressed at the conference noted above. These issues should be of interest to all Colorado attorneys who represent employers, as well as those who are employers. They include employer liability and responsibility; risk assessment; cost to employers of workplace violence; impact on employees; policy and program suggestions; and how domestic violence impacts the workplace.
Statistics on Workplace Violence
In March 1999, Pinkerton, Inc. released a survey of Fortune 1000 security executives on the top security threats facing corporate America. The survey was dominated by employee-related concerns, and workplace violence was rated as the most important security threat. Although deaths due to workplace violence have decreased in the last two years, it still is the second leading cause of death in American workplaces. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries,1 there were 860 workplace homicides in 1997 and 709 workplace homicides in 1998. In 1999, there have been a number of well-publicized instances of workplace violence, including the shootings at Columbine High School, and in Atlanta, Hawaii, and Seattle.
The Department of Justice’s National Crime Victimization Survey2 reports that, from 1992 to 1996, there were almost two million assaults and threats of violence per year against Americans at work. The most common type of workplace violence was simple assault, with an average of 1.5 million incidents a year: 396,000 aggravated assaults; 51,000 rapes and sexual assaults; 84,000 robberies; and 1,000 homicides. These statistics do not reflect the loss of productivity and adverse effects on employee morale of more common forms of workplace violence, such as bullying, intimidation, and harassment.
OSHA and Workplace Violence
The statistics on workplace violence and the more notorious incidents underlying them have fueled increased concern among employers and human resources personnel about workplace violence as a health and safety issue. Although the Occupational Safety and Health Administration ("OSHA") has not instituted rulemaking on this issue, it has issued guidelines and recommendations for workplace violence prevention for health care and social service workers and for late-night retail establishments.3
OSHA cites the General Duty Clause of the Occupational Health and Safety Act of 1970 ("OSH Act") as the basis for its involvement in the issue of workplace violence and its encouragement of employers to develop workplace violence prevention programs.4 OSHA’s guidelines and recommendations are based on its Safety and Health Program Management Guidelines and contain four basic elements: (1) management commitment and employee involvement; (2) worksite analysis; (3) hazard prevention and control; and (4) training and education.
OSHA has stated that the General Duty Clause of the OSH Act would support a finding of an OSH Act violation in a workplace "where the risk of violence and serious personal injury are significant enough to be ‘recognized hazards.’"5 The General Duty Clause would require the employer to take feasible steps to minimize those risks. However, "the 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."6
Other Statutory and Tort Issues for Employers
In its May 13, 1992, letter regarding criminal violence in the workplace, OSHA noted that, independent of a citation for violation of the OSH Act, employers will want to protect their employees and should be cognizant of their own potential tort liability. A range of issues confronts employers with regard to workplace violence, including employee relations, threat assessment, fact-finding and investigating, employee assistance program considerations, workplace security, and organizational recovery after an incident.7 Legal considerations are intertwined with all these issues. When a non-employee is injured due to workplace violence, employers face potential tort liability for negligence,8 negligent hiring,9 negligent retention,10 or negligent supervision.11 When an employee is injured as a result of violence in the workplace, Colorado courts have held that the employee’s exclusive remedy against the employer is under the Workers’ Compensation Act.12
An employer attempting to guard against workplace violence by making pre-employment inquiries may run afoul of Title VII of the Civil Rights Act of 1964 (with respect to screening out applicants based on arrest records) or the Americans with Disabilities Act (with respect to questions concerning emotional or mental health problems). Employers attempting to deal with potentially violent current employees also could face claims under these two statutes, as well as claims of defamation13 or invasion of privacy.14
Domestic Violence and the Workplace
The workplace violence conference is designed to cover the subject of violence in the workplace generally, with discussions of issues from legal and management perspectives. One important focus will be on what an employer should do when domestic violence becomes a workplace issue. The Family Violence Prevention Fund reports that 37 percent of women who have experienced domestic violence say that this abuse had an impact on their job performance, in the form of lateness, missed work, keeping a job, or career promotion. Sixty-six percent of business leaders polled in a 1994 study believe their company’s financial performance would benefit from addressing the issue of domestic violence among their employees.15 Domestic violence has a harmful effect on a company’s productivity and it increases an employer’s health care costs. The conference will include breakout sessions on the impact of domestic violence on the workplace, as well as a keynote address.16
1. See Bureau of Labor Statistics, National Census of Fatal Occupational Injuries, 1988; Bureau of Labor Statistics, National Census of Fatal Occupational Injuries, 1997.
2. Warchol, Workplace Violence, 1992-96, National Crime Victimization Survey, 1998 (Report No. NCJ-168634).
3. OSHA, Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers (1996); OSHA, Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments (1998).
4. The General Duty Clause, § 5(a)(1) of the OSH Act, provides: "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 likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(1).
5. OSHA, OSHA Policy Regarding Violent Employee Behavior (Dec.10, 1992). See also OSHA, Criminal Violence in the Workplace (May 13, 1992).
6. OSHA, Criminal Violence, supra, note 5.
7. See U.S. Office of Personnel Management, Dealing with Workplace Violence, a Guide for Agency Planners (1998).
8. See Taco Bell v. Lannon, 744 P.2d 43 (Colo. 1987) (restaurant had legal duty to take reasonable measures to protect patrons from consequences of criminal acts on part of unknown third persons).
9. Moses v. Diocese of Colorado, 863 P.2d 310, 327-28 (Colo. 1993), cert. denied, 511 U.S. 1137 (1994).
10. Yunker v. Honeywell Inc., 496 N.W.2d 419, 423 (Minn.App. 1993), review denied (Minn. Apr. 20, 1993).
11. Moses, supra, note 9 at 329.
12. In re Questions Submitted by the United States Court of Appeals for the Tenth Circuit, 759 P.2d 17 (Colo. 1988). See also Horodyskyj v. Karanian, 28 Colo.Law. 217 (App. 98CA0443, annc’d 9/30/99)(workers’ compensation is exclusive remedy against the employer in the employment context, although under certain circumstances an intentional tort claim may be maintained against a sole proprietor based on his status as a co-worker).
13. See Thompson v. Public Service Co. of Colorado, 800 P.2d 1299 (Colo. 1990), cert. denied, 502 U.S. 973 (1991).
14. See Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo. 1997).
15. Roper Starch Worldwide, Survey for Women’s Work Program, Liz Claiborne, Inc. (July 18-Aug. 5, 1994). Corporations were selected at random from a list of Fortune 1000 companies.
16. Sarah Buel will be the lunchtime keynote speaker. Buel is an attorney who wrote an article for the October 1999 family violence special issue of The Colorado Lawyer. See Buel, "Fifty Obstacles to Leaving, a.k.a., Why Abuse Victims Stay," 28 The Colorado Lawyer 19 (Oct. 1999).
CONFERENCE PROGRAM HIGHLIGHTS
The workplace violence conference will feature a presentation on workplace violence dynamics and coping strategies by Dr. John Nicoletti and Dr. Doris Gunderson, who have a great deal of experience counseling employers on how to prevent workplace violence and how to deal with the after-effects of violence. A roundtable discussion with attorneys and employers will cover workplace violence policies; evaluation and discipline of a violent employee; threat assessment teams; security measures; coping with the aftermath of a violent incident; and liability issues.
The conference also will include a choice of breakout sessions concerning the following: legal issues associated with workplace violence; relationship violence and the workplace; public sector issues and policy; the culture of workplace violence; employee assistance program and safety issues; and how to go "Beyond Violence Prevention." Legal issues addressed will include the Americans With Disabilities Act and workplace violence; risks of action or inaction on violence prevention; misrepresentation with regard to references; workplace violence policies, investigations, discipline, settlements, and restraining orders; constitutional issues; OSHA; workers’ compensation; and the Governmental Immunity Act.
The sessions on relationship violence will include presentations by District Attorneys Bill Ritter and Dave Thomas and others with significant experience in dealing with domestic violence victims and perpetrators. The keynote luncheon speaker, Sarah Buel, also will speak on relationship violence issues. The session on "The Culture of Workplace Violence" will examine structural and systemic issues that affect violence in the workplace. "Ask the Experts" will give attendees an opportunity to question employee assistance program directors and safety experts.
The conference is designed to cover a wide range of issues from a variety of perspectives. It is the hope of the conference organizers that the conference will lead to ongoing efforts to deal with violence in our workplaces and in our communities generally
Following is the program agenda.
February 17, 2000 Conference Agenda
8:30 Opening Remarks by Attorney General Ken Salazar
8:45 Workplace Violence Dynamics and Coping Strategies: Dr. John Nicoletti and Dr. Doris Gunderson
10:30 Employee/Attorney Roundtable on Violence in the Workplace
12:15 Luncheon Speaker: Sarah Buel: Relationship Violence and the Workplace
1:15 Breakout Sessions
Legal Issues I
Relationship Violence I
Public Sector Issues and Policies
The Culture of Workplace Violence
2:30 Breakout Sessions
Legal Issues II
Relationship Violence II
Beyond Violence Prevention
Ask the Experts
3:45 Where Do We Go From Here?: Carla Harding and Bill Vidal
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