It is difficult to start the New Year without reflecting on the violent tragedies of the past year: the Newtown, Connecticut shooting; the Aurora, Colorado theater shootings; and the two separate shootings in Wisconsin last September. In fact, since 1982, our country has had 62 mass shootings which occurred in 30 of our 52 states, Twenty-Seven of those shootings took place from 2006 to the present, and seven of them took place in 2012. Since 1982, half of these incidents took place in the workplace. In addition, more than three quarters of the guns used were obtained legally in these incidents. However, not all workplace violence involves the use of guns and this is something that all employers must keep in mind.
The United Statesâ€™ Occupational Safety & Health Administrationâ€™s (â€œOSHAâ€), definition of violence states: â€œWorkplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.â€
According to OSHA, the best protection employers can offer their employees is to have a â€œzero-tolerance policy toward workplace violence against or by their employees.â€ OSHA requires employers to provide a safe and healthful workplace for all its employees. See The Occupational Safety and Health Act’s General Duty Clause. OSHA provides some excellent safety recommendations for employers to incorporate into their employee handbooks along with a â€œzero-tolerance policy toward workplace violence.â€ OSHA recommends that employers provide safety education for their employees so every employee is clear on what conduct is not acceptable. OSHA also suggests that employers secure their workplace by installing video surveillance, extra lighting and alarm systems. OSHA also believes that providing employees with badges or electronic keys also increases employee safety. Most importantly, employers should have an open-door policy for employees to report any incidents of violence without any repercussions to that employee.
OSHA further states that employees can also contribute to a safe environment. Employees can attend personal safety training courses where they can learn how to recognize, avoid or diffuse potentially violent situations. Employees should be encouraged to report to supervisors any concerns they may have about their safety or security at work, and employees should be encouraged not to enter any location where they may feel unsafe.
As mentioned earlier, not all workplace violence involves guns, but because of Texas Senate Bill 321, commonly known as the â€œEmployee Parking Lot Bill,â€ that went into effect in September of 2011, Texas employers have an additional duty to amend their workplace violence policies to incorporate those employees who legally carry and store their owned guns in their vehicles while they are at work. In short, this Texas law states that an employer cannot prohibit an employee who has a concealed handgun license or who â€œotherwise lawfully possesses a firearmâ€ from storing their weapon â€œin a locked, privately owned motor vehicle in a lot, parking garage or other parking area the employer provides for employees.â€
Although there is a provision in Senate Bill 321 that states that â€œan employer is immune from liability for injury or death involving a firearm that an employee brought to work,â€ there is, however, disagreement in the legal community whether Senate Bill 321 provides an employee the right to sue for a private cause of action against their employer.
In light of Senate Bill 321, employers should consider implementing more stringent pre-employment background checks as well as increase their vigilance of employees. Without question, employers must require any employee who has a Concealed Handgun License to inform them of that license and provide them with the documentation that shows they are entitled to carry a firearm. Employers also must seriously consider a quick termination for any employee who exhibits the potential for violent behavior.
While we all hope for a more peaceful workplace, going forward employers and employees alike must remain vigilant and work toward a safe working environment while maintaining a balance that also preserves the civil rights of the workforce.
If you’ve been a victim of workplace violence, or your firm needs help reviewing its policies and procedures in handling violence, contact employment lawyers.