Pyramid, a construction company responsible for building a Super Stop & Shop in Canaan, Connecticut, recently agreed to pay $11.35 million to a temporary worker injured in a horrific accident.  In 2006, temporary worker Benjamin Wohlfert became paralyzed after plunging 25 feet from a forklift while following the orders of the foreman, Gerald Bates.  Bates’ supervisor at Pyramid had warned him against using that kind of forklift for elevating people.  Wohlfert and Bates were temporary workers employed by two different staffing agencies.

Typically, an employee can only collect through the workers’ compensation system and may not sue the employer in court.  But, because Wohlfert was not Pyramid’s employee, the workers’ compensation system did not preclude him from suing Pyramid.  Wohlfert also sued Bates and the company that employed him.  His total payout could exceed $23 million.  To top it off, Pyramid was fined for violating OSHA rules regarding the types of devices that can be used to lift workers.

How can your company avoid becoming the next Pyramid?  First, carefully consider the pros and cons of using independent contractors.  Several studies have shown that temporary workers carry a higher risk of occupational injury than their permanent counterparts.  Temporary workers often have less training and experience than permanent ones.  This is an especially important consideration if your industry is a hazardous one, such as construction.  If you choose to use temporary workers, make sure you provide appropriate training and supervision and that you comply with workplace safety requirements.  In addition, you may be able to claim the protections of the workers’ compensation system if the staffing agency has an alternate employer rider on its policy, which is designed to list you and cover you if a workplace injury occurs.  While eight-figure settlements are certainly not the norm, catastrophic injuries can occur in any workplace and those who use non-employee workers must know and manage the risks. 

Brody and Associates regularly advises management on all employment issues involving workplace safety matters, including OSHA compliance.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Can employers face liability for failing to conduct pre-employment background checks?  What background information may employers consider?  Should a 20-year-old homicide conviction preclude someone from driving a bus?  These are some of the questions arising in the wake of a recent tragic bus accident involving a driver with a criminal record. 

Based on this tragic story, employers are reminded to determine if their employee-screening strategy is both legal and adequate.  Inadequate precautions may lead to disaster (and, obviously, claims by customers, employees, and others).  Failing to follow federal and state rules on background screenings may lead to civil rights charges or claims under the Fair Credit Reporting Act (FCRA) by rejected applicants.  Below are some of the major issues involved in developing an appropriate strategy.  But first, a consideration of the facts of the recent tragedy reveals some practical challenges and potential consequences.

On March 12, 2011, a bus returning to New York City from Mohegan Sun Casino flipped on its side on Interstate 95, striking a sign post which sliced the bus in half.  Fifteen people died, but the driver, Ophadell Williams, survived.  When questioned by police, Williams claimed he was clipped by a tractor-trailer.  However, further investigation disproved this.  Moreover, passengers informed police that Williams was driving erratically and nodded off several times shortly before the crash.  These details led police to investigate Williams’ criminal and motor vehicle history and discover numerous prior convictions.

Williams’ criminal record began in 1987 with a minor offense.  However, in 1991, he fatally stabbed a man and was later convicted of manslaughter, serving two years in jail.  Subsequent convictions include disorderly conduct, possession of stolen property, and a grand larceny charge for which he served three years in prison.  As for motor vehicle violations, Williams’ driving privileges were suspended in 1995 after ignoring several tickets for speeding and driving without a license.  In 2003, Williams was arrested for driving without a license and carrying three police scanners.  Although Williams still obtained a commercial driver’s license, reports suggest he likely supplied false information on his application. 

On March 22, 2011, the first two lawsuits were filed by injured passengers against both Williams and his employer, World Wide Tours.  

Negligent Hiring

Whenever an employee harms someone, injured parties always sue the employer as that’s typically “the deep pocket.”  Often, this is based on a vicarious liability theory, which generally holds employers liable for the negligence of employees acting within the scope of their employment.  In this case, for example, if Williams is found to have been negligent while driving passengers home, the bus company should be vicariously liable. 

However, employers can also be held liable for their own negligence in selecting an unfit employee who injures others, even if the employee was not acting within the scope of employment.  To prevail, plaintiffs must prove the employee’s misconduct was foreseeable (e.g., the employee had a propensity or motive).  Employers may similarly be liable for their own negligence in retaining employees who later demonstrate they are unfit. 

Consider a February 2011 Connecticut Superior Court decision involving claims against Stamford Hospital by a woman whose epidural pump was stolen by a physician’s assistant while she was in labor.  There, the judge granted summary judgment dismissing the vicarious liability claim because stealing was outside the scope of the physician’s assistant’s employment (his story was he wanted to extract the medicine for his dog!).  However, because there was evidence hospital staff distrusted him and possibly knew of similar prior conduct, summary judgment was denied as to the negligent retention claim.

Background Checks

One way to minimize negligent hiring claims is conducting preemployment background checks.  However, whether this expense is justified (and the extent of the background check) depends on the specific circumstances.  For example, trust-sensitive positions involving unsupervised work with money, medicine, or vulnerable individuals (e.g., children)  generally warrant a criminal background check, drug test (a separate topic not addressed in this article), and possibly a credit check. 

Also, positions involving driving probably warrant a motor vehicle history check.  Once an employer decides background checks are appropriate, the next issue is what information may be legally considered and what compliance obligations exist.

Criminal Convictions

According to the Equal Employment Opportunity Commission (EEOC), because statistics show a higher conviction rate among African Americans and Hispanics, excluding applicants based on convictions is an unlawful practice under Title VII of the Civil Rights Act unless justified by business necessity.  Business necessity involves consideration of three factors: (1) the nature and severity of the offense, (2) the recentness of the offense, and (3) the nature of the job.  

This analysis may be challenging in practice.  For example, although Williams’ manslaughter conviction involved a serious offense (fatal stabbing), it is 20 years old.  Also, although a manslaughter conviction does not relate to driving ability, his duties included close interaction with casino/bar patrons who may be angry over gaming losses or intoxicated.  Is this too much of a risk?  In this case, however, this was not his sole offense; Williams’ record included recent motor vehicle violations (obviously relevant), which could have easily supported a no-hire decision.

Although the legal standard for arrests is the same, there is one major distinction: arrests do not prove the offense actually occurred.  Therefore, employers cannot rely on arrest records without proof the offense was committed.  This typically proves difficult as employers do not want to take the role of detective.  However, some employers may have no choice.  For example, a school likely cannot take the position it will refuse to consider arrests.  Employers should consult counsel in these cases and verify there is no state law regulating consideration of arrests.

Complying with FCRA

Lastly, employers who outsource their background investigations must comply with the Fair Credit Reporting Act.  First, applicants must give written authorization. Employers can attach a form to the employment application.  Next, if information obtained will be used against an applicant, the employer must notify the applicant and provide an opportunity to refute the information (e.g., mistaken identity).  The applicant must also be given a copy of the adverese report.  Lastly, if the employer ultimately decides not to hire based on the information obtained, another notice must be given to the applicant with another copy of the report. 

Conclusion

They say hindsight is twenty-twenty.  However, when an employee hurts or kills others, that excuse will neither comfort the bereaved nor sway jurors (and the general public).  Employers failing to consider whether background screenings were appropriate may be surprised when a court rules they had a duty to do so (which they breached).  

With proper counsel, employers can develop an appropriate strategy to satisfy any such duty, protect the company’s assets, and most importantly, minimize preventable tragedies.

It used to be a disgruntled worker would slam a door or rip up a paper.  Next it was an employee would break a machine or cut a few wires.  Now it can be much worse.  As workplaces become more computer-dependant, disgruntled employees with even basic computer skills can destroy gigabytes of crucial data with a few keystrokes or mouse clicks.  A more sophisticated user can destroy an employer’s computer system with viruses and other malware. 

Beyond firing the offending employee, do employers have any legal recourse?  A recent Connecticut federal ruling reminds us the answer is yes. 

In Monson v. Whitby School, Inc., Judge Mark Kravitz denied the employee’s motion to dismiss, affirming that employers have viable causes of action under two federal laws and a Connecticut state statute.  According to the allegations, Dr. Michelle Monson, head of the Whitby School in Greenwich (America’s oldest Montessori School) engaged in cyber sabotage after learning she was being discharged. 

The school claimed Dr. Monson gained unauthorized access to Whitby’s email server and deleted over 1,500 emails from email accounts belonging to other Whitby employees.  Then, before returning her school-issued computers, she deleted data and software programs stored on them.  Whitby claimed the cyber sabotage required the school to spend more than $5,000 attempting to restore the data and software.  Whitby’s claims were brought under the Computer Fraud and Abuse Act (CFAA), the Electronic Communications Privacy Act (ECPA), and Connecticut General Statutes § 52-570b.

Computer Fraud and Abuse Act (“CFAA”)

Among other things, CFAA prohibits “intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing]” information from a “protected computer” (a computer used in or affecting interstate or foreign commerce or communication).  

CFAA defines “exceeds authorized access” as the use of authorized computer access “to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”  However, CFAA allows a civil action only if there are specific injuries.  In the workplace cyber sabotage context, the relevant injuries may either be (1) physical injury to any person or (2) loss to 1 or more persons during any 1-year period aggregating at least $5,000 in value. 

While the $5,000 threshold seems high, it is construed broadly and includes all reasonable costs incurred, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its previous condition.  Also, while employers can include lost revenues and other consequential damages, the Second Circuit Court of Appeals held those losses must result from interruption of service.  For example, if an employee merely copies (without authorization) passwords or confidential data, neither the cost of changing the passwords nor lost profits resulting from the employee’s use of confidential data are recoverable under CFAA.

It should be noted that while several District Courts in the country follow the Second Circuit’s approach, the First Circuit (covering Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) and other District Courts allow claimants to recover all compensatory damages, not just those stemming from interruption of service.

Electronic Communications Act

ECPA allows employers (and anyone else) to bring a claim against anyone who  (1) intentionally or knowingly accessed without authorization a facility providing electronic communication service or exceeded authorized access to such facility, and (2) thereby obtains access to, alters, or prevents authorized access to stored communication.  In Monson, Whitby sufficiently pled such a claim by alleging Dr. Monson intentionally accessed other employees’ email accounts without authorization and deleted messages. 

Although Whitby also alleged Dr. Monson accessed her own email account post termination (when her authority to do so ended) and deleted her own email messages, the court noted that deletion of one’s own messages does not violate the ECPA (although such conduct likely violates CFAA).

Connecticut Statute

Connecticut General Statute § 52-570b goes beyond both federal laws.  This statute provides a private right of action to “any person who suffers an injury to person, business or property . . . against a person who is alleged to have violated any provision of section 53a-251” which defines the following computer crimes: (1) unauthorized access to a computer system, (2) theft of computer services, (3) interruption of computer services, (4) misuse of computer system information, and (5) destruction of computer equipment.  Several of those crimes have subparts allowing for a broad range of actionable misconduct.

In Monson, the court held Whitby sufficiently alleged Dr. Monson violated two subparts under “Misuse of computer system information.”  Specifically, Monson allegedly intentionally or recklessly and without authorization either (1) altered, deleted, tampered with, damaged, destroyed or took data intended for use by a computer system (i.e. other employees’ email messages and software on her laptop), or (2) intercepted or added data to data residing within a computer system.

In addition to allowing recovery of actual damages, the Connecticut statute also allows recovery of damages for unjust enrichment (e.g., gain derived from the data obtained).  Thus, while the federal laws and the other provisions of the state law help employers against saboteur employees, this provision helps employers against absconding employees.  The Connecticut statute also provides for “treble” (i.e., triple) damages where there has been a showing of “willful and malicious conduct,” and an award of attorney’s fees and costs to a prevailing claimant.

Don’t Forget Common Law

While it is great to have statutory claims explicitly dealing with cyber sabotage and statutes providing for federal jurisdiction (as that forum may be more advantageous in a given case), state common law typically includes tort claims which may also provide relief.  Such claims may include trespass (to chattel), conversion, fraud, and tortious interference with business relations.  

As computers remain among the most valuable (and vulnerable) assets, employers and their counsel should become more familiar with these protections and also make sure employees are aware of them.  In an era where employee-rights laws continue to expand, it’s good to remember Employers have rights, too!

While the issue is scary, focusing on which employee is most likely to snap is a misuse of your time. Instead, employers should concentrate on creating a positive working atmosphere, where employees feel free to voice their concerns to management, and where employees and employers look out for each other’s well-being – an atmosphere where doing the right thing permeates the workplace.  Employees should be urged to reach out to management when they recognize that a co-worker is experiencing difficulties or showing signs of stress, whether they suspect workplace violence or not.

It is imperative that all employers train their supervisors and employees to prevent workplace violence.  Employees and supervisors also need to learn how to recognize warning signs of workplace violence. In addition, supervisors should be trained to deal with unhappy employees in a safe and positive manner. (Where such training is not provided, they at least need to know they must alert management.) 

As the recent shooting reminds us, the most important time for these precautions is during a discharge.  Supervisors need to learn what precautionary steps to take before they fire an employee, including such things as the location of the meeting, who should be present in the room, and whether there were any previous warning signs of violence from this employee which warrant extra precautions. In certain instances, it may be prudent to have security or the police nearby or on alert. In the most extreme cases, you may even do a discharge over the phone.  Finally, if you have any indication of potential violence, you need a plan to escort the employee out of the building and a plan to protect other employees as they exit the building. 

On the other side of all these precautionary words, employers must remember that announcing someone is a threat to others safety can be defamatory and subjects the employer to liability.  Your basis for making such a statement is key.  Sometimes such statements are needed, but often better alternatives exist.  You need to consider all your options.  Experienced counsel is often appropriate in such cases. 

Overall, most instances of workplace violence go unreported. To avoid a culture of secrecy, every employer should have a procedure for reporting signs of possible workplace violence and minor acts of violence or other inappropriate behavior including bullying.  One option is to implement a hotline where employees can anonymously report suspicious or unwelcome activity in the workplace. Also, employers would benefit from having a conflict management system, whereby an employee can voice their frustrations and work through them with management.  Of course for smaller employers, an effective open door policy may be the answer.  The alternatives are many; the employer’s obligation is to choose one.

The conflict here is clear.  As one of the bill’s authors put it, “A waitress working at 2 a.m. needs to be able to protect [herself]; if an employer can ban [her] from having it in her car, it is banning her from protecting herself to and from work.” However, with guns allowed in the workplace, a different potential for disaster exists:  A workplace dispute starts inside and spills over to the parking lot, where loaded guns await a disgruntled employee.  And if trouble does explode, the employer is the first deep pocket to be liable.  

Regardless of where you stand on this topic, if you have operations in Indiana, your workplace violence policy must not prohibit guns in locked vehicles.  However, prudence suggests you and every employer need a strong conflict resolution program.  For example, do you have an effective open door policy that encourages employees to take their issues directly to management? People often resort to violence when they feel it’s the only way they’ll be heard. Lastly, supervisors should be trained to recognize warning signs that may precede a violent attack. These are prudent steps for employers everywhere, but they are now absolutely vital for employers in Indiana where workplace parking lots may now be explosive.

Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

For many, the murder of Yale graduate student Annie Le should have served as a wake-up call: If workplace violence can occur in the “ivory tower,” it can occur at any workplace. 

The question now is: what steps should employers take to reduce the risk of work­place violence and minimize possible liabil­ity? Of course, the worst harm is physical injury, but there is also the economic harm employers suffer when employee morale crashes, business is disrupted, or a large judgment is awarded based on a workplace violence-related lawsuit. Below are steps employers should take to reduce the risk of both types of harm.

Workplace Violence Policy

The first step is to create a workplace violence policy and publish it in the em­ployee handbook. While the details may vary depending on the needs of the or­ganization, every policy must convey the company’s zero tolerance for workplace violence and commitment to keeping the workplace safe for everyone. Among other things, the policy should specify who to contact to report any threat or act of violence and how “violence” is de­fined. Are threats included? What about “jokes?”

Keep in mind, a well-drafted workplace violence policy can be a blessing or a curse. If it is properly followed and enforced, it will help keep workplace violence night­mares from becoming reality and may save an employer in court.  But a brilliant policy that goes unheeded by management tells employees (and the courts and ju­ries) the company is really not con­cerned about workplace violence. Moreover, unheeded policies are a plaintiff ’s road map to all the steps the employer failed to take.

Train Everybody

The next step is a good train­ing program. A lot of damage is done when people do nothing out of fear of insulting someone or im­pinging on his or her privacy. Then after tragedy strikes, employees recount, “Well, there was this time when I saw…,” or, “You know, I always felt un­comfortable when he….”

In Yale’s case, news outlets report that the suspect, Raymond Clark III, was a “control freak” who, among other things, grew angry with lab workers who did not follow the rules. It appears no one said anything about this until after Annie Le was killed. Training can overcome such inhibitions. All employees should be trained to recognize the warning signs, trust their perceptions and report what they see immediately. In turn, supervi­sors and managers must be trained to properly respond.

Have a Plan

When facing a workplace violence emergency, an emergency response plan can help prevent panic and possibly save lives. While everyone should have a plan, the magnitude will depend on the circum­stances. Here are a few questions employ­ers should consider: Is there a history of violence in this community? Should there be panic buttons? Does the phone system allow for easy dialing of 911? Employers should be sure to tailor their plan based on their industry and community.

Careful Hiring

Every company wants to hire the right employee. Proper training can not only help interviewers identify those who are a good fit, but also help them avoid hiring a danger­ous person. Depending on the industry (e.g. child care), a background check may be re­quired, and an inadequate background check may be the basis for a negligent hiring claim. Obviously, employers must comply with all anti-discrimination laws and, if conducting background checks, possibly the Fair Credit Reporting Act.

An often missed aspect of training is teaching how to honestly and accurately de­scribe the work environment. For example, a candidate who cannot handle rejection may nevertheless accept a position making cold calls because the interviewer convinced him that “it’s not so bad.” The employee then goes on to experience tremendous stress as people routinely shout obscenities and hang up the phone. No good will come from such a hire. Part of interviewing is to encourage candidates to not follow through if they learn the job is not right for them.

Enforcement

Proper enforcement of the company’s workplace violence policy is crucial to both preventing workplace violence and liability. For example, when an employer ignores an employee with a violent track record, that em­ployee may injure a co-worker, and the em­ployer may be liable for negligent retention (i.e., the employee should have already been fired for previous violations).

All reports of threats or acts of violence must be properly investigated and addressed.

An appropriate response to a minor inci­dent (e.g., yelling at a coworker) may avoid escalation down the road. Also, addressing such incidents may help management real­ize a problem is brewing and take appropriate precautionary steps.

Employee Assistance Programs

One question employers should consider is whether to have an Employee Assistance Pro­gram. An EAP is a benefits program employers can purchase (like an insurance policy), con­sisting of a set of pre-paid services by experts in various fields. When employees are facing a stressful event in their lives — especially out­side the workplace — an EAP can help.

If an employee is considering filing bank­ruptcy, for example, an EAP may provide a couple of hours of free credit counseling. An EAP could also provide an employee over­whelmed by difficulty at home with free calls to a therapist. Anger management services may also be part of the EAP. By helping em­ployees deal with stressful situations early, an EAP can prevent some of the frustrations that may lead to workplace violence.

Terminations

Losing a job is devastating to many, and for some, it may be enough trigger a violent response. This is why management must be trained to properly handle terminations. For example, helping the employee maintain self-respect can be a huge issue. Toward this end, employers should consider letting someone go at the end of the day when no one may no­tice. But beware, if no one is there to notice the employee depart, no one may be there to help if the employee gets out of hand.

Another aspect of the self-respect issue is whether management can describe the dis­charge as not a reflection of the employee’s character, but rather the economy, a change in the business needs, etc. While terminations should never be easy, such steps can help.

As for the best day for terminations, while many consider it to be Friday, that is prob­ably the worst day. Letting employees go at the end of the week leaves them waiting until Monday to start working on getting a new job (although the Internet has made it easier to get started over the weekend). Letting employees go during the week allows them to spend the remaining weekdays starting to bounce back and plan a future. Explaining this to employees can help minimize anger. Also, making suggestions for finding anoth­er job, even something as simple as signing up at a temp agency, can help demonstrate the employer is trying to help.

Conclusion

While it may be impossible to ensure a violence-proof workplace, employers who are proactive, instituting proper policies, proce­dures, and training will have safer workplaces and less risk of liability.