The Legal Consequences of Workplace Violence: Part One

Following up on last week’s article regarding the responsibilities of organizations to create a civilized work environment for the safety of their employees, this week’s article is going to examine the consequences for the organization if these responsibilities are not fulfilled. While it remains to be seen whether Yale University will face litigation in the wake of Annie Le’s death, organizations can be held responsible for the physical and verbal violence of their employees on the job.

The most direct charges faced by organizations are negligent hiring and negligent retention. The difference between the two claims depends on when the employers should have had reason to know that the employee in question had the potential to put his colleagues at risk. For example, if a reference check during the application process would have revealed that the potential employee was terminated from a previous job for yelling at a colleague, the charge of negligent hiring would be a more apt fit. If the employee had a clean record before coming to the organization and had only begun to display concerning behavior after his hire, this would fit more with the charge of negligent retention.

In reality, these charges are usually brought in tandem. In addition, because they are founded on a negligence principle, liability lies in what the employer should have known as well as what he actually knew. Therefore, an employer who had never suspected that Joe in accounting maintained a passionate hatred for Sue from sales, could still be held responsible if Joe attacked Sue after work one day.

To a certain extent employers can control their exposure to liability for negligent hiring and retention. Criminal background checks have become commonplace, particularly among larger employers, and most applicants are required to provide a handful of professional and non-professional references. Once hired, most human resource departments have procedures to respond to complaints and obvious red flags.

There is, however, a certain amount of information that can only be gathered by interacting with employees and colleagues. There is a wonderful short story by Daniel Orozco called Orientation that describes, in detached tones, the inner lives of a new hire’s colleagues. The story is full of rules regarding the operation of the coffee maker and the shredder that must be followed lest the new hire “be let go” but also states that various colleagues are actually serial killers or sexual voyeurs in their spare time. These behaviors are allowed unless they interfere with work. While it is hard to imagine that managers in any organization would be as callous as those depicted in the Orozco story, employers are less likely to become aware of potential problems if they do not effect work output.

As discussed in the last article, a program like CREW can reduce the likelihood of workplace violence by increasing respect among coworkers. It can also help from a legal point of view. Groups participating in CREW learn more about each other than they would otherwise and problems and concerns are more likely to come to the surface before reaching an apex that would bring liability upon the organization. This can close the gap between what an employer ought to know and what he actually knows about his employees. Consequently the employer can take action to stop situations from escalating saving employees from potential violence and organizations from potential law suits.</P

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