Couple that with greater access to weapons—40 states now make the carrying of concealed weapons legal—and you've got the makings of an ominous workplace situation. But employers have more control in the outcome than they may think.
Donald W. Savelson, partner in the labor department of the New York City-based law firm Proskauer Rose Goetz & Mendelsohn, takes a look at how employers can protect their employees—and themselves.
When the figures for workplace violence for 1995 are tabulated, what will we see?
The top officials in the Occupational Safety and Health Administration have indicated there are more violent incidents in the workplace than ever before.
It's a topic that unfortunately is very real for a lot of our clients and a lot of employers in the country. Certainly, there's not a day that goes by in which you don't read about or see something on the news with respect to violent episodes in the workplace. It's a very big problem. When we run seminars on workplace violence, we'll get 500 different companies coming to them. It's astounding.
Are certain industries more inclined to experience violent incidents?
Yes. The Occupational Safety and Health Administration is in the process of setting guidelines, and maybe eventually a standard, for preventing and dealing with violence in the workplace. It has focused on two or three specific industries.
The highest incident seems to be in retail stores, particularly in the evening-hour operations. The health care field also has become one of the increasing areas of violence, particularly in [functions] that deal with emotionally disturbed patients. Generally, however, violent incidents cover a broad spectrum of industries.
Forty states now allow carrying of concealed weapons. How easy is it to get a permit?
It depends on the state. There's legislation in the majority of states that allows individuals to carry concealed weapons. For most of them, we're talking about handguns, not shotguns, not machine guns.
In terms of carrying concealed weapons, most states require a waiting period when you apply for a permit because they want to check whether you have a criminal record. The waiting period varies. I understand you can get it in three to five days in some states.
So an employee who wants to carry a concealed weapon can get a permit fairly easily? Or does it again depend on the state?
[It depends.] New York, like a lot of other states, passed a "legal activities" law. Employers have been more restrictive in how they structure the workplace environment. For example, some employers have policies on not hiring anyone who smokes. In New York state, the legal activities law [makes it legal] to smoke, not on the premises, but outside of work.
This law would also cover [owning] guns and belonging to a gun club. [Employers can't make employment decisions based on gun ownership]. So that may give encouragement to individuals who want to own guns or weapons.
Can employers force employees to tell them if they're carrying a concealed weapon?
The answer is emphatically: Yes. That is, of course, if an employer is going to allow employees to carry concealed weapons on the premises [in the first place]. It's inviting disaster.
But if the employer is going to allow [the carrying of concealed weapons], it's lawful to require the employee to first and foremost advise the employer that the employee is going to be carrying a concealed weapon while doing work duties.
Does this apply to weapons outside of handguns?
Weapons are more than simply handguns: They could be long knives, brass knuckles, box cutters—which are currently the weapons of choice for many, particularly young people. They're easily hidden, easily purchased (you don't need a permit), but they can do a lot of damage.
So an employer can legally ban weapons altogether—even for employees who've obtained a concealed-weapon permit?
There's no constitutional right to carry a concealed weapon into a workplace. The mere fact a state would allow people to carry a concealed weapon doesn't allow a person to carry it when he or she enters a workplace, which is not in the public domain. The workplace is controlled exclusively by the employer—the employer can insist the employee disclose the nature of the weapon and where he or she is going to carry it.
Assuming employers want to ban weapons in the workplace, what's the best approach?
The large majority of employers absolutely ban weapons in the workplace, and they do it in a number of ways. The easiest way is to have a written policy that's communicated to employees and is contained in an employee handbook or in a set of rules and regulations that govern conduct.
It's very important to communicate that in writing—not just in an e-mail message—so that everyone can look at that continuously. Employees need to know what the expectations are. It wouldn't be unusual for an employee in a state that allows the carrying of concealed weapons to bring that weapon and put it in a locker or carry it around because they feel they live in a bad area outside of work or they've been threatened outside of work. You want that workplace rule of conduct to be clearly communicated so workers know it's prohibited and could lead to discipline, including termination.
Does a clear policy ensure the legality of terminating an employee who does bring a weapon to work?
Employers that clearly communicate that type of policy are in a much sounder legal footing in disciplining or terminating employees for bringing weapons into the workplace. Obviously, unionized employers with collective bargaining representatives may have some more difficulty in discipline or in terminations if they don't communicate that kind of policy or rule to employees. But an employer would never have a problem warning an individual: "You are not to bring a weapon into the workplace."
What about background checks for criminal records—is that advised?
An employer hiring for something like a delivery [position]—for which the employee will be going into people's homes—doesn't have to hire someone with a criminal record of violence.
But some states are very restrictive for employers on what kind of convictions you can even consider: how old the conviction is, whether it relates to the job. That's not counting arrest records, because there are no states that I'm aware of that would even consider allowing an employer to use arrest records in employment decisions.
What if you've already hired an employee who begins to show violent tendencies?
Often you're going to come across current employees who exhibit violent tendencies. You have to establish a program to monitor those individuals. When necessary, prevent them from going out into the workplace where they'll deal with the public, and limit their interaction with fellow employees.
What if you have reason to believe an employee may be violent—how do you find out without committing invasion of privacy?
One of the things you may have to do is conduct an investigation to determine if an employee is exhibiting violent tendencies—whether he or she is stalking other employees, whether the person is sending messages across your e-mail or voicemail system, whether he or she is using the employer's premises to engage in prohibited and unwelcome conduct toward other employees.
The best thing to do is to make sure there's a clear policy enunciated to employees that the employer reserves the right to access his or her computer and e-mail and voicemail. You can do this by just having the policy flash on the computer screen when you turn it on in the morning.
Let's say, despite necessary precautions, a violent incident occurs. What liability does an employer have toward employees who are hurt in workplace violence?
The exposure depends upon who was injured and what the circumstances were leading to the injury or assault by an employee who has a weapon. Under state law, liability is determined by whether an employer is negligent in the way it hires employees, and in the way it supervises and trains employees. Employers are required to carefully hire and screen employees as well as supervise them.
The problem is a Catch-22 for employers in the sense that employees have a lot more protections against discrimination in the workplace today in their hiring and continued employment—ADA and state equal opportunity laws may give them protections.
If you look at the normal profile of the violent employee today, it's a white male in his forties who has had a troubled background, marital problems, medical problems—a lot of those qualities could lead to discrimination if you were to try to screen out those individuals. But employers still are required to make sure that employees who exhibit violent conduct are carefully monitored and channeled into employee assistance programs.
Doesn't the workers' compensation law keep many employers from being sued?
Every state normally has a restriction under the workers' compensation laws that prohibit employees from suing their employers directly. If an employee is injured on the job, the exclusive remedy is workers' compensation. Now the question arises, what happens if an employee is injured by a co-worker? In most cases workers' compensation is the exclusive remedy.
In what cases would the remedy be different?
There are two ways employees get around this restriction on suing their employers if there's violence in the workplace. The first way is they sue a third party, claiming it was the third party that was negligent, like an independently contracted security force. That contractor in a number of states is then allowed to sue the employer, claiming that if the contractor is negligent and found liable, then the injured can collect from the employer, who also was negligent—perhaps the employer didn't advise the third party of an employee's violent tendencies or provide adequate precautions or screening measures.
In addition, some states allow employees to sue employers directly if there's gross negligence: The employer knew of violent tendencies in an employee and didn't take adequate steps to protect the workforce. Say a supervisor knows an employee is carrying a concealed weapon, and doesn't tell anyone about this. The employee continues to bring the weapon into the workplace, and sooner or later becomes angry and uses the weapon. That employer may have been guilty of gross negligence.
What if the injured party is not an employee?
The employer would also have liability to customers and the public at large if the employee has violent tendencies and the company should have known but didn't do a careful screening. [This would also be the case] if the employer is told about violent tendencies and doesn't reasonably supervise that employee. This is the same kind of liability as when the employer sends an employee out into the workplace and says: "You're free to do whatever you want to the public at large."
What can employers do to protect their employees, their customers and themselves?
First, establish a good violence-prevention program. Adapt a proactive strategy by establishing a plan that makes security and violence prevention an essential function of everyone's job in the workplace. Develop a written policy describing the organization's philosophy and approach to workplace violence. Make sure if an individual exhibits signs of violence that lower level management doesn't cover it up, but reports it—because it's important to document these.
Discuss security considerations with employees in the workplace and decide what the program should look like. You certainly want to implement a security-risk assessment program. Identify those locations where you may need additional security. What areas present the most security risk for employees?
Finally, create a climate that's characterized by communication, sensitivity and respect toward employees. You'll often find there are certain institutional events that give rise to workplace violence: reductions-in-force, individual terminations, disciplinary actions, major changes that will cause upheavals. Make sure that your supervisory force treats individuals with respect and dignity when they're carrying out any of these actions.
Personnel Journal, March 1996, Vol. 75, No. 3, pp. 122-125.