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.

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.