General Duty Clause
Under OSHA employers have a “general duty” to provide employees with work and a workplace free from “recognized hazards that are causing or are likely to cause death or serious physical harm.” Workplace violence prevention has generally been accepted as falling under the auspices of this “general duty clause” when hazards involved:
· create a ‘significant risk’ to employees in other than ‘a freakish or utterly implausible concurrence of circumstances,’1
· are known to the employer and are considered hazards in the employer’s business or industry2 and
· are ones which the employer can reasonably be expected to prevent.3
Definition: What is
Workplace Violence?
Workplace violence is unique as a workplace hazard because unlike other hazards it does not involve a work process, but instead an act committed by a person. Because workplace violence is committed by a perpetrator the definition has been grouped into one of the following categories when a violent act is committed in the workplace or while an individual is performing their job:
· an individual that has no legitimate relationship with an employee or the employer, e.g., a robber of a convenient store
· an employee or ex-employee
· an individual that is or has been a client, customer, contractor, vendor or other legitimate relationship with the employer
· an individual that has an intimate, family or other relationship with an employee
Negligent lawsuits are costing employers an average of $500,000.00 for out of court settlements and 3 million dollars for cases that to trial.4 Employers must contend with lower employee morale, increased absenteeism, increased stress, increased retention and recruiting issues and negative publicity. In addition, there is a profound impact on the business operations from decreased productivity, increased absenteeism, delayed shipments, lost sales, management distraction, cost of restoration of impacted areas, worker compensation and medical claims, etc.
The overall impact and cost to the business of reacting after an incident occurs can be staggering versus the cost of focusing on preventing an incident from occurring in the first place.
OSHA has issued citations for gross violations or when serious incidents have occurred. For example, the Hawaii Occupational Safety and Health Division cited Xerox for two safety violations in connection with the massacre that occurred at their site (note that the citations were subsequently withdrawn).
Industries and Positions Most Heavily Impacted
Because of the nature of workplace violence virtually any business or industry that employs people or provides services and/or products to people can be impacted. The positions within a company that have the greatest exposure to workplace homicide are the ones that involve handling cash or other valuables and that deal directly with clients, customers or people in providing a service. This category accounts for 85% of all workplace homicides while employee on employee accounts for 7%, domestic violence 5% and client/customer 3%.5 Overall government employees are victimized about three times as often as private sector employees and the most heavily impacted industries are late night retail/convenient sales, law enforcement/security, education, health services, and transportation.
While workplace homicides such as the incidents at OC Transpo, Ottawa, Canada or Edgewater Technologies, Wakefield, MA or Xerox, Honolulu, Hawaii get considerable media coverage the data is overwhelmingly clear that the larger
problem is non fatal workplace violence incidents which account for an estimated 2 million reported incidents annually. 6 Non fatal incidents include simple assaults,
aggravated assaults, robberies, thefts, hostage taking, hijackings and rapes/sexual assaults.
What
are the Legal Requirements and Professional Guidelines for Workplace Violence?
The federal Occupational Safety and Health Act applies to workers employed by private companies and Executive Order 12196 and 29 CFR extended much of that coverage to Federal Agency employees as well. State OSHA plans apply to many workers employed by government owned or by public authorities. The Occupational Safety and Health Administration has issued recommend guidelines regarding dealing with workplace violence which can be accessed online at
http://www.osha.gov/index.html. The National Institute of Occupational Safety and Health (NIOSH) – also provides research and information on preventing workplace violence. (See http://www.cdc.gov/niosh.html.) Additionally, many rail and air transportation firms are covered under the Federal Railroad Administration and Federal Aviation Administration safety and security guidelines and regulations.
Additional Legal concepts to be mindful of include negligent hiring, negligent retention,
negligent misrepresentation, negligent security, negligent entrustment, etc. as
well as the American’s Disability Act and worker’s compensation laws (see www.Workplaceviolence911.com
for in-depth coverage of these issues)
Keep in mind that in order for a workplace violence incident to occur three factors must come together – a violence prone individual, a stressful or triggering event, and a violence prone work environment. When these three factors come together the potential for workplace violence becomes a real and present danger. While there are obvious events we can anticipate will be stress inducing, the truth is that since virtually any situation can be perceived as stressful by an individual there is little we can do to eliminate or prevent the triggers because ‘life happens.’ Consequently, your efforts must focus on assessing ‘at risk’ behaviors in
individuals by paying attention to the ‘early warning signs’ and on the organizational level identifying the factors that are known to contribute to an increased likelihood of violence occurring. (See Common Factors to Violence Prone Organizations available at www.Workplaceviolence911.com) Once
identified effective intervention strategies can be designed to eliminate the ‘at risk’ factors on both levels or at minimum to reduce there impact.
The number one
obstacles to developing a proactive preventative approach to reducing violence in
the workplace is the stark reality that most individuals in organizations are
in denial and believe that “it couldn’t happen here.” Results from a recent Gallup survey
indicated that
many American businesses are turning a blind eve toward warning signs of
workplace violence. "The warning signs are well known, but too many
companies are burying their heads in the sand," said Frank Kenna Ill,
president of The Marlin Company who commissioned a recent Gallop study." A lot of people rationalize the fact that
they're not confronting the issue. They say they don't want to overreact, and
figure any fears are unfounded so they ignore the signs, hoping they'll go
away. The survey reported that only 25% of respondents indicated they received
any training in how to identify warning signs and what to do about them. Overcoming this mindset is the starting
point to implementing a strong and effective effort to prevent workplace
violence.
The individual assigned responsibility for spearheading the firm’s workplace
violence prevention effort should be a manager with influence and one of their first actions should be to establish a Workplace Violence Prevention Committee (also referred to as a Threat Management Committee.) Participants on the committee should include representatives from Security, Human Resources, Occupational Health & Safety, Legal, Risk Management, Public Relations, Operational Management and Union representative, if applicable. The committee should focus on creating a violence-free work environment by eliminating ‘at risk’ behaviors on both an individual and organization level. One of the key responsibilities of the committee should be to establish a Workplace Violence Zero Incident policy (See model policy at (www.workplaceviolence911.com/ModelPolicies) that focuses on creating a work environment that is violence-free and eliminating ‘at risk’ behaviors on both an individual and organization level. Note that a Zero Incident
focus is a proactive approach which targets prevention and goes beyond Zero Tolerance.
Either incorporate a ‘No Weapons in the Workplace’ provision into your workplace violence prevention policy or establish a separate policy that clearly establishes that no weapons are allowed on the premises and employees are prohibited from possessing while on duty.
Illustrative of a good workplace violence policy statement is the U.S. Department of Transportation’s Workplace Violence Policy.
“A safe working environment for all employees, free from violence or any threat of violence, is one goal of the U.S. Department of Transportation. Violence and threatening behaviors in any form are unacceptable and will not be tolerated. . . The cooperation of supervisors, managers, and employees is necessary to implement this policy and maintain a safe working environment. . . . Supervisors and managers are expected to take immediate action to investigate reported threats or violence and any suspicious items or activities, and with the assistance of appropriate officials, reduce or eliminate the risk of workplace violence.”
The Workplace Violence Prevention Committee should also research the nature of risk to the company that are associated with the business of the firm, their industry and the geographic area in which they operate their facilities. Where there are known hazards that exist within this type business, industry or area, specific actions should be taken to mitigate and address the problems because this is where the greatest potential for violence to occur lies and commensurately, the highest liability.
Conduct periodic Risk Assessments to identify vulnerabilities that exist in the firm’s physical facilities that could contribute to ‘significant risk.’
Conduct an Organizational Violence Assessment to identify management practices that are not conducive to creating a violence-free workplace, e.g. terminating employees via email, harassment of employees, incongruent policies, etc. The assessment should closely review safety records for a history of violent
incidents and ‘close calls’ to determine trends, conditions, circumstances and underlying causes of violence as well as identify cultural norms and behaviors that
are endemic which may create undue stress or conflict in the organization. This is a key tool in identifying ‘at risk’ factors on the organization level.
Identify experts experienced and thoroughly trained in how to professionally assess the violent nature of an individual and the likelihood of h/she becoming violent.
Enhance Physical Security measures and establish Workplace Violence Audit
team(s) to conduct on-going assessments and effectiveness of security efforts.
Synchronize your Personnel, Security and Safety policies to ensure they create an integrated workplace violence prevention effort.
Develop crisis response procedure to deal with an incident which includes having a crisis communication and public relations plan in place before a crisis occurs. Additionally, pre-establish a critical incident debriefing process and skilled counselors to be able to assist victims after an incident.
Create an emergency protocol with police regarding who to contact, having them visit your site and learn your facility layout; and making your address and building numbers clearly visible on the front and top of buildings.
Enhance hiring procedures to include checking backgrounds, references, validating identify and training all personnel involved in interviewing to look for violence prone tendencies. (See Complete Hiring Guide to Screen for Violence Prone Individuals available at www.Workplaceviolence911.com.)
Actively and regularly promote your Employee Assistance Program and train supervisors how to make an effective referral.
Provide on going training for managers, supervisors and employees in how to identify ‘early warning signs,’ how to appropriately intervene to address them and how to de-escalate potentially volatile or hostile situations.
Focus on developing core competencies in effective conflict resolution, hostility/anger management and emotional intelligence.
Other interventions that employers can use to focus on preventing workplace violence include:
· Establishing an Incident Response Team (specially trained to deal with crisis)
· Publish a list of ‘who to call’ and resources available to assist with issues
·
Design employee sensitive termination/layoff and
discipline procedures that are fair, respectful and maintain employee dignity;
take special precautions when ‘at risk’ behaviors are present. Heed the words of Dick Ault, Ph.D., a former FBI agent specializing in profiling, “You have
to approach the firing of anyone with the utmost of dignity, even people who
really don’t deserve it.”
· Use Security Prevention Through Environmental Design (SPTED) – engineering/architectural controls processes when building or retrofitting facilities to maximize crime prevention.
· Provide field personnel with hand held alarms or noise devices and/or communication device to be able to get help, e.g., cellular phones, pager, etc. to use while in the field along with processes for monitoring their whereabouts.
· Make sure all employees know that workplace violence prevention is everybody’s business and they have an important role in reducing violence.
· Implement a campaign on treating people with Dignity and Respect (See info@innovations-training.com)
· Providing workplace violence policy and guidelines and training in multiple languages based on languages spoken in your workplace.
· If your employees are represented by a Union you should consider introducing a workplace violence prevention initiatives to be jointly developed as a part of the next contract. You should work with the Union to pre-determined how cases, complaints and situations will be handled, define processes to be used and consider including mediation to provide an objective third party to negotiate outcomes.
Employees also have a key role in reducing violence and a truly effective prevention effort must maximize the participation of employees and their support. By encouraging the following practices employers can enlist employee support
and they will contribute substantially to a successful effort to prevent violence at work:
·
Report threats,
suspicious activities or actions of violence regardless of whether you
personally believe the threat is serious
·
Avoid horseplay,
practical jokes, harassment or other risky behaviors that could lead to injury,
creating animosity, shame or invoking angry reactions
·
Treat all employees,
customers and contractors with dignity and respect. Remember that how we say
something is just as important as what we say.
·
When feeling overly stressed
seek help from EAP or other support services designed to act as ‘relief valves’
for frustrations or problems, e.g., church, family, friends, etc.
·
Actively follow the firm’s policy regarding workplace
violence and the procedures for dealing with workplace threats and crisis