Article in CT Law Tribune

[Kathy]

http://www.ctlawtribune.com/getarticle.aspx?ID=35073


Monday, September 28, 2009

Patricia Reilly of Littler Mendelson said employers should look for
warning signs of potentially violent behavior in the workplace and
encourage employees to report those instances anonymously.

Taking Aim At Workplace Disputes

Lawyers say Yale murder highlights need for training, policies

By DOUGLAS S. MALAN

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.”•