Thomas A Shumaker IIAllison L FeldsteinPM. Public Management. Washington: Apr 2004.Vol. 86, Iss. 3;  pg. 34, 2 pgs



Thomas A Shumaker II,  Allison L Feldstein

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PM. Public Management. Washington: Apr 2004. Vol. 86, Iss.  3;  pg. 34, 2 pgs

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Abstract (Document Summary)

Shumaker and Feldstein discuss the liability of employers for workplace violence. The risk of workplace violence raises several concerns for employers, including the potential for liability, and workplace violence lawsuits have resulted in millions of dollars in settlements and judgments. To maintain a safe workplace and minimize liability, employers must take steps to prevent workplace and violence and respond appropriately to it when it occurs.

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Copyright International City Management Association Apr 2004

Two employees killed in a California supermarket. Three shot in a Missouri heating-equipment plant. Five dead at a Mississippi aircraft-parts factory. These are tragic examples of workplace violence at its extreme. And they represent only a small fraction of instances of violence in the workplace.

While fatalities garner the greatest media attention, the 2 million nonfatal workplace violence incidents reported annually in the form of assaults, robberies, thefts, hostage taking, hijackings, rapes, and sexual attacks represent a larger problem for employers.

The risk of workplace violence raises several concerns for employers, including the potential for liability, and workplace violence lawsuits have resulted in millions of dollars in settlements and judgments. Beyond monetary costs, employers must contend with lower employee morale and negative publicity. To maintain a sale workplace and minimize liability, employers must take steps to prevent workplace violence and respond appropriately to it when it occurs.

Many employers assume that workers' compensation laws protect them from lawsuits for all workplace assaults. Under many circumstances, workers' compensation insurance will cover an employee's injuries sustained during employment. Workers' compensation statutes, however, generally exclude intentional acts. In Pennsylvania and many other states, whether workers' compensation laws apply to injuries intentionally caused to an employee by a third party depends on the facts of the case.

An employee assaulted in the workplace may try to recover damages lrom the employer on these two grounds:

Vicarious liability. An employer may be liable for violence committed by an employee as part of his or her job duties, as when a security guard uses excessive force. Most courts, however, have refused to hold employers vicariously liable for the violent acts of employees who injure others because employers usually do not authorize employees to act violently.

Negligence. An employee may claim that the employer was negligent in hiring, supervising, or retaining the assailant, that is, that the employer knew or should have known that the individual was unfit but hired and kept the person on the job anyway.

Employers can reduce the risk of violence in the workplace and minimize their liability, should violence occur, by taking such measures as verilying application information, doing thorough background checks, and having more than one person present during an evaluation or termination meeting.

The important thing is to ask questions about prior violent behavior. Even if an employer does not obtain usable information from references or if the applicant lies, the fact that the employer asked the questions helps protect it against liability.

States differ in whether they allow employers to consider conviction records in hiring decisions. In Pennsylvania, for example, an employer may ask an applicant about his or her criminal record and may deny employment to a convicted felon if the conviction is related to the job duties. It does not permit employers to ask about misdemeanor or summary offense convictions or to reject an applicant because of an arrest record or a prior conviction that was pardoned, unless the conviction is related to the job duties.

Employers should consider other actions specifically aimed at preventing and responding to workplace violence: to train supervisors to spot a potentially violent employee; to improve physical security; and to develop, communicate, and enforce a workplace violence policy.


Studies have shown that violent workers usually don't just snap. They come to a slow boil. A supervisor trained to recognize an employee at the "simmer" stage can prevent violence and refer the employee for counseling. Warning signs include:

* Employee's comments about a personal or family history of violence.

* Fascination with guns or other weapons.

* Direct or veiled threats, like "Someone will be sorry."

* Serious personal or family problems, such as divorce, a death in the family financial troubles.

* Drastic changes in behavior, such as, mood swings, outbursts, insubordi- nation.

* Deterioration in job performance.

* Substance or alcohol abuse.

* Being a loner.

* Signs of paranoia about another employee.

* Repressed anger.

Physical Security

Good premises security can help prevent violent acts and enable an employer to respond quickly to those that do occur. Adequate lighting eliminates dark corners where an assailant might lurk. Silent alarms and cameras act as deterrents and enable the employer to monitor the workplace and preempt threatening behavior.

Limiting access to the premises through controlled entry points and through a badging system helps protect employees from a disgruntled former employee or an outsider with a grudge. Prominently posting the company security office's telephone number enables bystanders to call for help. And a first-aid kit in a conspicuous location may help save a life.

Workplace Violence Policy

In many respects, an employer's obligation to protect employees against physical assault is not much different from its duly to protect against harassment. In writing a workplace violence policy an employer's anti-harassment policy is a good place to start for language on reporting and investigation procedures.

An effective workplace violence policy should explicitly prohibit intimielation, threats, and violence and should bar weapons from the workplace, even if employees are licensed to carry them. The policy should remind employees that the employer has the right to search automobiles, purses, desks, lockers, and all areas of the employer's premises.

It should encourage the reporting of violent behavior or of threats by employees, regardless of where they occur, and should state that all reasonable efforts will be made to protect the confidentiality of the person who makes the report. The policy should establish procedures for investigating reported acts or threats of violence.

It should stipulate that if the reported conduct was violent or involved threats of serious injury, the suspect employee will be immediately suspended, pending an investigation.

An ounce of prevention is worth a pound of legal defense. Employers who recognize the warning signs of potential violence, improve security, and strictly enforce a workplace violence policy can minimize the risk of liability and provide a safe environment for their employees.

[Author Affiliation]

-Thomas A. Shumaker II and Allison L. Feldstein


Employment and Labor Law Department

Eckert Seamans Cherin & Mellott, LLC

Pittsburgh, Pennsylvania