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Taking Aim At Workplace Disputes
Lawyers say Yale murder highlights need for training, policies
Tensions are running high in the office. In a bad economy, stress increases and people’s fuses get shorter. A heated conversation between co-workers escalates into a shouting match. One worker becomes enraged, berating the colleague.
Is the person having a bad day? Is it a personality trait? A personal grudge? Or is it a small step toward something more cataclysmic?
Often, there is no clear-cut answer. But when it comes to workplace violence, there are plenty of questions about how companies go about maintaining a “safe and healthful” work environment, as required by the Occupational Health and Safety Administration (OSHA).
The Annie Le murder in a Yale University science lab is just one recent instance of apparent workplace violence. Reports indicate that Le’s accused killer, lab worker Raymond Clark III, exhibited characteristics of controlling behavior and had been confrontational with other scientists.
For an employer, even the most basic confrontation between co-workers should be addressed, said Patricia E. Reilly, an employment lawyer in Littler Mendelson’s New Haven office.
Instances of workplace violence “often have warning signs and red flags, and employers should handle lower-level incidents to keep them from becoming bigger, more dangerous incidents,” Reilly said. “The best an employer can do is try to resolve interpersonal conflicts as soon as they come to their attention.”
She counsels many companies in dealing with day-to-day personnel matters where flaring tempers can lead to inappropriate behavior, and she also helps companies conduct internal investigations of personnel. Warning signs of dangerous behavior include a pattern of interpersonal conflicts, bullying, threats and sexual harassment, Reilly said.
She said companies should publicize their employee assistance program to encourage workers to anonymously report confrontational behavior in the workplace. And companies must have a system for disciplining employees, as well as an emergency response plan.
“Most [human resources] managers are sensitive to the potential for violence and will handle conflicts before they get to the level that violence is a real concern,” Reilly said.
But it’s certainly not a black and white issue, and there are not always warning signs that lead to a volatile, or deadly, incident. “There are going to be some situations that the behavior couldn’t predict the results,” Reilly said.
Threat Of Litigation
And when that happens, companies should be prepared to face litigation, even if the violence isn’t as extreme as a homicide, said David S. Poppick, an employment attorney at Epstein, Becker & Green in Stamford.
“I’ve certainly seen litigation arising out of claims of abusive behavior, including shouting matches where a person felt threatened,” Poppick said.
In general, the most common claims against employers include negligent hiring and negligent retention. The difference between the hiring and retention claims is when the employer became aware of a threatening employee; often, the arguments are that employers inadequately screened job applicants or failed to act on complaints about an employee who later committed a violent act.
Hostile environment claims also occur in workplace violence litigation, Poppick said.
The one claim he consistently sees in the handful of workplace violence cases he handles every year is infliction of emotional distress, and he has seen those claims lead to damages of anywhere between $5,000 and $500,000.
“I’ve had some of these cases, though none of them have gone to trial,” Poppick noted. “They either get dismissed or there’s a settlement. I have three of them pending right now.”
A company’s responsibility goes beyond OSHA regulations. U.S. Supreme Court decisions in 1986 (Meritor Savings Bank v. Vinson) and 1998 (Faragher v. City of Boca Raton and Booker v. Budget Rent-A-Car) stated that companies must take measures toward avoiding and preventing workplace violence, not just reacting to it.
In the 1990s, liability expert Norman D. Bates conducted a study that found workplace violence tort cases averaged $500,000 per settlement and a $3 million per jury verdict.
The potential for litigation seems to be high, based on U.S. Department of Labor statistics. On average, more than 2 million acts of violence occur in the workplace every year. When it comes to assaults, women are targeted at a much higher rate than men, both in Connecticut and nationally.
From 2005-07, the U.S. Department of Labor tracked 1,250 non-fatal workplace assaults in Connecticut, and women were the targets in 77 percent of those cases. On the national level during the same period, women were targeted in 63 percent of the more than 47,000 non-fatal assaults.
Studies have shown that health care and social services workers are among those most at-risk. Periods of intense organizational change, such as labor disputes and downsizing, can also increase the possibility of a violent episode.
Reilly, of Littler Mendelson, said she gets a lot of calls about how to properly handle a termination, which she advises should be done at the end of the workday and work week.
“Employers are very sensitive to the emotional effects of whatever actions they take,” Reilly said.
Avoiding The Issue
John Able, a training officer for the Connecticut division of OSHA, is still waiting to see the effects that the economy and the Le murder might have on employers’ awareness of workplace violence. Able offers free workplace violence training programs for employers in the public and private sectors. “We do workplace violence training because we recognize it as a hazard,” Able said.
He acknowledges that he receives relatively few requests for training from private employers. But when Able does talk to companies, he’s often told that employees aren’t sure if a workplace violence policy actually exists. A 2005 Department of Labor study backs him up; it revealed that 70 percent of U.S. workplaces don’t have a formal program or policy that addresses workplace violence.
A sexual harassment policy, on the other hand, is front and center because Connecticut requires training for awareness, Able said. He is not certain that companies really want to address the issue of workplace violence.
He said employees have told him that when complaints about confrontational behavior are made, bosses often downplay the concern.
“Managers don’t want to deal with it,” Able said. “And people don’t like to say anything because [they think] maybe the worker is having a bad day or maybe it’s his personality, but you ignore it and then something big happens. When all the clues are there, it’s up to management to act on it.”
Companies often look past those clues, agreed Gary Namie, executive director of the Workplace Bullying Institute in Washington State. He believes companies are geared toward preventing homicides in the workplace with high-tech security systems and emergency lockdown plans for when a deadly event is in progress.
But in terms of actively addressing behavior that could lead to bigger problems, “it’s totally ignored by employers,” Namie said. A survey his group conducted that found 37 percent of the American workforce has been subjected to bullying and another 12 percent has witnessed bullying.
Yet, no state has enacted an anti-bullying in the workplace law, Namie pointed out, though 16 states, including Connecticut, have introduced such legislation since 2003.
“What has happened in the American workplace is that intimidation and abuse are acceptable modes of conduct,” Namie said. “It is violence. It is psychological violence.”
Namie did note, however, that several international companies have banded together to form the Corporate Alliance to End Partner Violence, which is focused on preventing domestic violence from entering the workplace.
But Attorney Reilly said that for all of a company’s efforts to address workplace violence and possible contributing factors, the results are not certain.
“It’s very difficult because you can train people and you can have systems in place to report behavior,” she said, “but I’m not sure there’s anything you can do to completely remove all of the risks.”•