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Would you like fries with that?

Oklahoma Employment Law Letter - August 2010

By Sam Fulkerson

This is a true story. Last month in Tulsa, an employee at a Whataburger restaurant got rid of a machete-wielding robber by giving him french fries in place of cash. Police said the man walked into the restaurant and asked for fries but didn’t have any money to pay for them. When the clerk wouldn’t give him the food, the man pulled out a large machete and demanded cash. The employee told the robber he couldn’t have the money but offered him the fries instead. The man, who was described as a regular customer, took the food and left. It wasn’t reported whether he asked to have the fries super-sized before leaving.

This is a somewhat humorous story because it ended without, for example, an employee decapitation. However, violent acts in the workplace are all too common. Although it may seem unlikely that someone is going to walk into a business and start shooting, violence is the third most common cause of workplace deaths, according to the most recent government figures. In 2008, the last year measured by the Bureau of Labor Statistics, assaults and violent acts accounted for 816 deaths. The only events that caused more fatalities were transportation accidents (2,130) and contact with objects or equipment (937). Insurance companies rank assaults and violent acts as the 10th most common cause of disabling injuries in the workplace, costing employers $600 million in 2007.

It’s the economy, stupid
Despite the high numbers, acts of workplace violence actually declined from the mid-1990s through 2008. However, because we’re stranded in the throes of a historically bad economy (with unemployment stuck at 10% — higher if you count the underemployed and individuals who have quit looking for work altogether), it’s possible that the downward trend will halt. (The government hasn’t analyzed 2009-10 figures yet.)

Although there aren’t any recent studies to substantiate it, many commentators have noted at least anecdotal evidence that economic stress has caused an increase in workplace violence. Certainly, when you combine high unemployment and poor economic activity with renewed rights to carry concealed weapons and transport weapons in personal vehicles (including at work), the potential for an increase in workplace violence is very real.

You should review your workplace violence policies and make sure training is current. For example, employers in fast-food and retail industries may want to train their employees not to offer fries to machete-wielding customers.

What is ‘violence’?
“Workplace violence” isn’t specifically defined by any federal statute or regulation. The National Institute of Occupational Safety and Health (NIOSH) offers a broad working definition: any physical assault, threatening behavior, or verbal abuse occurring in a work setting — i.e., anything from shootings to obscene phone calls to harassment. According to the Occupational Safety and Health Administration (OSHA), between 1.7 million and two million workers are victims of workplace violence each year.

The U.S. Department of Justice determined that workplace violence was responsible for roughly 18 percent of all violent crime between 1993 and 1999 (the most recent years the department investigated). That includes violence against employees ranging from police officers (predictably the most frequent victims) to retail sales employees (with convenience store, gas station, transportation, and bar employees at the top of the list). Since then, the numbers have improved significantly, due in large part to employer policies and training.

Good policies and training:
an effective defense to employer liability

Surprisingly, no single federal law or agency directly prohibits workplace violence — not even OSHA, although it has issued voluntary guidelines and recommendations for reducing or eliminating workplace violence that employers would be wise to heed. Still, under state law, you can be held liable for violent acts occurring in the workplace based on, for example, negligent hiring, supervision, or retention or failing to provide proper safeguards. State law generally holds that employers owe a duty to protect third parties, including other employees, from the violent acts of its workers if the violence is foreseeable.

Workplace violence policies and training should be pragmatic and incorporate the findings of federal agencies. You should focus training on high-risk areas. NIOSH lists the following situations as risk factors for workplace violence:

  • contact with the public;
  • exchange of money;
  • delivery of passengers, goods, or services;
  • having a mobile workplace;
  • working with unstable or volatile persons in health care;
  • working alone or in small numbers;
  • working late at night or early in the morning;
  • working in high-crime areas;
  • guarding valuable property; and
  • working in community-based settings.

Manager training should incorporate monitoring the types of behaviors that indicate an employee might commit a violent act. The National Institute for the Prevention of Workplace Violence lists 13 signs to look for, including employees who:

  • make threats;
  • act unreasonably;
  • intimidate or control other employees;
  • exhibit paranoid behavior;
  • act irresponsibly;
  • exhibit angry or aggressive behavior;
  • show a fascination with or acceptance of violence;
  • hold grudges;
  • exhibit generally bizarre behavior;
  • exhibit signs of depression;
  • demonstrate obsessions;
  • show signs of substance abuse; and
  • demonstrate signs of desperation.

Your workplace violence policy should:

  • state that violence will not be tolerated in any form;
  • provide a nonexhaustive list of violent acts;
  • explain that prohibited violence is not limited to violence or physical confrontations
  • between employees but includes actions involving customers and clients; and
  • state that workplace may include verbal threats or harassment.

Your policy should further state that employees who engage in workplace violence are subject to discipline, up to and including termination, and that law enforcement may be contacted. If a customer or client is responsible for the violence, he should be prohibited from future dealings with the company. Finally, your policy should establish a simple reporting and investigation procedure, similar to one contained in a standard sexual harassment policy.

Takeaway
Although workplace policies and training can’t guarantee safety, they can be effective in reducing violence. Further, they are essential to your defense when violence does occur. And in these tough economic times, the resulting stress may well increase the possibility of both customer and employee violence, meaning now is the time to review policies and conduct training.