How to Prevent Violence in the Workplace

Workplace violence is a major problem in the United States. People are hurt or killed every month by co-workers or patrons.

While it is not as common a problem as sexual harassment or discrimination, workplace violence is preventable if certain measures are taken to keep employees safe. Follow these tips:

Create a harassment prevention policy – Each level of worker should be represented. Employees, managers and executives must all be informed about the policy. Be sure that complaints can be filed and will be addressed privately but quickly.

Create open lines of communication – Perpetrators are able to carry out their plans if they think that victims will be silent. If there are regular meetings of teams or the entire workforce, people have a chance to voice their concerns and relieve tensions.  Encourage employees to talk to one another and managers about issues, and develop a strong resolution plan with clear steps.

Promote workplace violence awareness – One of the best ways to prevent violence is to train people what to do if there is an intruder or a disgruntled employee. Establish an emergency management team and levels of communication that will facilitate help arriving quickly if there is a major issue.

Set and communicate consequences of threatening behavior – Employees should clearly understand how to identify threatening behavior. They should also understand what constitutes unacceptable behavior and the consequences of it.

Implement a zero-tolerance policy for improper conduct – Be sure that every worker knows about the code of conduct. If workers display signs of violence toward each other, their employment should be terminated. Also, put on display signs that let intruders or disgruntled patrons know that the company has a zero-tolerance policy for violence or threatening behavior.

Promote inclusiveness, acceptance in the workplace – Employees can benefit from diversity workshops that help them learn about differences in religion, ethnicity, age and other factors. Set up activities that help teams get acquainted and embrace their differences.

Keep conflicts from escalating into violence – Watch teams closely to see how they work together. In some instances, tensions can arise but are not relieved properly. This means that the tensions only grow and may lead to violence. Conflict resolution should be encouraged and should be an effective process.

Recognize each worker’s individual value – Every worker should understand why his or her role is vital to the success of the company. Clearly portray this, and thank workers when they contribute. Many workers who become disgruntled and carry out violence do so because they are not appreciated or properly acknowledged for their contributions. Try to notice when workers go above and beyond.  Also, be sure to treat workers equally and fairly at all times.

Encourage workers to report threatening or violent incidents – Reporting should be kept confidential to ensure that employees feel safe. Also, ensure that there is a zero-tolerance policy in place for retribution after a report.

Reduce asset theft risks – Robbery is often a factor in workplace violence. Keep the amount of assets in the workplace to a minimum. To reduce the amount of available monetary assets, use electronic pay systems. Also, keep a locked safe on the premises for any amounts of cash or other important assets.

The takeaway
When employers have a solid plan in place to prevent workplace violence, employees are able to avoid becoming disgruntled and behaving unacceptably.

Take all the steps necessary to reduce the chances of a violent confrontation at your company. Encourage your staff to voice concerns about any problems they may be having outside the workplace that they fear could spill over into the workplace, such as a stalker or an ex who has threatened them with bodily harm.

They should also know that there are channels for communicating openly and voicing concerns.

OSHA Goes Back More Than Five Years for Repeat Violations

OSHA can look beyond five years to assess “repeat violations” when considering the penalties against an employer for breaching workplace safety regulations, a U.S. appellate court has ruled.

Repeat violations can be assessed at 10 times the amount of a safety violation, which makes the ruling a game-changer for companies who have been cited more than once, even if that citation was issued more than five years ago. It increases the stakes for employers who until now chose not to contest more routine violations because of the cost of defending them.

Under OSHA regulations, the maximum penalty for a serious violation is $12,934, but if it’s not the first time OSHA has cited the employer for the infraction, the maximum fine balloons to $129,336.

Up until 2015, the agency would typically not look back more than three years when deciding if a violation was a repeat. But in 2015, OSHA changed that period to five years in the field operations manuals for its inspectors.

Despite those changes, the U.S. Second Circuit Court of Appeals ruled in February this year that the field operations manuals are not legally binding and that OSHA is not restricted from going further back than five years to establish repeat violations.

The court made the ruling in the case of a company called Triumph Construction Corp. that had been cited in 2015 for a repeat violation, and which OSHA had fined based on Triumph receiving a prior citation for the same infraction more than three years earlier.

Triumph challenged OSHA’s authority to go back more than three years to establish a repeat violation, saying that doing so was “arbitrary.”

But the court stated that the earlier guidance of three years and the new guidance of five years were not actually binding on the agency because the Occupational Safety and Health Act or OSHA regulations do not actually set time limits on issuing repeat citations.

 

What you can do

The best option for employers is to make sure they are in compliance with all OSHA regulations in the workplace in the first place, and have all the required safety precautions in place to reduce the chances of workplace incidents.

For employers that have been cited before, it’s of utmost importance that they continually pay special attention to safety issues for which they’ve already been cited. Now that this ruling has set a precedent, it could open up all employers to repeat violations no matter how long ago they were cited for the original infraction.

The law firm of Fisher Phillips, in a blog on the lawsuit, recommends that employers who may have been reluctant in the past to challenge a citation, should consider doing so if they feel they have a good-faith defense. If they are successful in fighting the citation, it cannot be used as the basis for a repeat violation.

“The cost-benefit analysis for contesting non-repeat citations has changed. If an employer previously believed that contesting a $12,500 serious citation was not worth the legal cost, the risk of being hit with a repeat violation $125,000 several years down the road may tilt the balance toward contesting those lesser citations,” Fisher Phillips wrote.

The law firm said that employers should be especially vigilant about contesting citations that involve “a routine activity, task, or equipment where a repeat [violation citation] is more likely to arise in the future.”

It also emphasized the importance of maintaining comprehensive records from prior OSHA inspections and citations and documentation about actions taken to fix the problem, in order to avoid citations for the same hazards in the future. “This will hopefully prevent the issuance of a repeat citation, no matter what the repeat time period OSHA may attempt to enforce,” they wrote in their blog.

 

 

Ruling May Open Firms up to Prosecution, Employee Suits in Safety Cases

The California State Supreme Court has issued a landmark opinion that paves the way for employees who have been injured at work due to their employer’s violations of Cal/OSHA regulations to sue for unfair business practices and other violations of the state’s Business and Professions Code.

This broadens the scope of employer liability in workplace injuries and steps beyond the workers’ comp bargain that in exchange for having their medical bills and lost wages paid for, employees give up the right to sue their employer for creating an unsafe work environment that may have contributed to their accident.

The California Supreme court – in Solus Industrial Innovations, Inc. vs. Superior Court – ruled that the federal Occupational Safety and Health Act does not bar employees or prosecutors from bringing unfair competition and consumer protection claims based on workplace safety and health violations.

This opens up a new possible area of liability for employers, according to an analysis of the decision by Seyfarth Shaw LLP.

Solus may result in a spike in workplace safety and health litigation against employers,” wrote Joshua M. Henderson, partner in the complex discrimination litigation practice group of Seyfarth.

 

Case background
The case stems from a 2009 incident when two Solus wokrers were killed after a water heater exploded. The equipment exploded when its safety valve malfunctioned and because there were no other safety features on the heater “due to manipulation and misuse,” according to Cal/OSHA.

Afterwards, the California Bureau of Investigations launched an investigation, as it is required to do after workers are killed on the job. It forwarded its findings to the Orange County district attorney, who in turn charged the plant manager and maintenance supervisor with felony violations of the Labor Code.

Orange County prosecutors also filed a civil action, accusing Solus of:

 

  • Violating the state Unfair Competition Law – It alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices
  • Violating the state Fair Advertising Law – It alleged that the company had engaged in false advertising by making “numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,” in order to attract and retain customers and employees.

 

The DA sought over a million dollars in civil penalties in the lower court case. Solus asked for the trial court to dismiss the case, but the court rejected the motion. On appeal of the decision, the Court of Appeal reversed, saying that the federal Occupational Safety and Health Act pre-empted state unfair competition law, which barred the civil action.

The state Supreme Court ruled that the case could proceed, which sends it back to the local court for hearing. In reversing the Court of Appeal, the high court said that since California has its own workplace safety enforcement mechanism, state law can indeed be used.

The case now goes back to the trial court for action on the DA’s civil claims.

 

Why it’s important
Seyfarth’s Henderson said employers should be concerned because:

  • Solus does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. This means that an employer could theoretically beat back Cal/OSHA citations and still be sued under the Business and Professions Code.
  • An employee or DA could sue a company for Business and Professions Code violations in relation to a workplace injury even if OSHA does not issue a citation. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division.
    Damages are barred under the unfair competition law, but restitution and injunctive relief are not. The bar would be high though, as an employee must prove they had some kind of economic injury.
  • The statute of limitations is four years for unfair competition claims and three years for false advertising claims.

 

Addressing Workplace Bullying Can Head off Lawsuits

While poor employment practices, harassment and discrimination are coming to the forefront in the U.S., one workplace liability that organizations should not overlook is bullying.

Social media trends have shined the spotlight on a variety of ways people are treated poorly, but the bullying focus has mostly been on schools and not workplaces, which can be breeding grounds for bullying as well. And workplace bullying can lead to lawsuits against your organization, in addition to possible workers’ comp claims.

There has been a bit of an epiphany recently that many employment practices lawsuits concerning stress in the workplace, psychiatric injury, harassment and other issues have their root in bullying by someone in the workplace – often a superior.

Bullying has been present in workplaces for as long as they have existed, and for the most part it has just been swept under the rug. This is especially true for sales people and management with production goals hanging over their heads. Many people are browbeaten by superiors, but the question is: When does leaning on an employee to perform cross the line and become bullying?

 

Bullying statistics

  • 19% of workers have been victims of workplace bullying.
  • 61% of the perpetrators are described as a boss or supervisor.
  • 65% of the workers who reported being bullied also said they had lost their jobs.
  • 37% of workers said their workplace bullying experiences were covered up by others in the workplace.

 

Source: Workplace Bullying Institute survey (2017)

 

Seven essential elements of workplace bullying

  • Repeated behavior
  • Inappropriate behavior
  • Direct or indirect behavior
  • Verbal, physical or otherwise
  • Conducted by one or more persons
  • Takes place at the workplace in the course of employment
  • Capable of being reasonably regarded as undermining a person’s dignity.

 

Source: Johan Lubbe, partner at law firm Jackson Lewis LLP

Bullies in the workplace appear to be gender neutral. Women account for 58% of workplace bullies, according to the Workplace Bullying and Trauma Institute.

That said, women are the primary targets, according to the WBTI. Women bullies choose female targets 87% of the time, and male targets only 13%. Men bullies choose female targets 71% of the time, and male targets 29%.

 

Workers’ comp ramifications

Workplace bullying can lead to stress and, if it becomes debilitating, a worker can file a workplace stress injury claim. This is mostly the case in California, but workers’ comp stress claims are becoming more common throughout the country.

More and more jurisdictions are accepting stress as a valid workers’ comp claim, particularly if it leaves someone unable to work because of their nerves.

 

Employment practices liability

Employers should address workplace bullying before it is too late, because it can create liability issues when left unaddressed.

Employers should pay attention to company culture, watch out for cliques that may make newer employees feel unwelcome, and resist making allowances for the companies’ best performers if they are accused of bullying, according to experts.

If you have an employment practices liability policy, coverage for bullying claims may already be covered. But EPLI is very fact-specific and the facts of each case determine a lot on the coverage provided.

Workplace bullying might fall under wrongful acts or workplace harassment. Another area where coverage could be triggered is accusations of “infliction of emotional distress.”

While bullying is not currently covered by any laws, there have been efforts in state legislatures to get laws on the books making workplace bullying an actionable offense.