Reducing Liability for Workplace Violence: Recommendations by OSHA

Authored by Adam Hirtz • September 30, 2013

On Sept. 16, a civilian contractor and military veteran went on a shooting rampage at a U.S. Navy command complex building in Washington, D.C. (“Navy Yard”), killing 12 people before being shot dead himself.  As a result of the Navy Yard shooting last week and several other high-profile shooting incidents throughout our country over the last several years, employers are increasingly interested in learning techniques to help prevent violence in the workplace while better understanding their legal duties and liabilities for failing to do so.

The U.S. Department of Labor has estimated that more than 2 million American employees are victims of workplace violence each year, ranging from threats and verbal abuse to physical assaults and homicide.  Under the Occupational Safety and Health Act of 1970 (OSHA), an employer has the general duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  29 U.S.C. § 654(a).  OSHA has interpreted this “General Duty Clause” to include the protection of employees against workplace violence.  See OSHA Workplace Violence Fact Sheet (2002); see also, Ramsey Winch, Inc. v. Henry, 555 F.3d 1199, 1205 (10th Cir. 2009) (acknowledging that workplace violence is covered under OSHA).  Employers who do not take reasonable steps to prevent workplace violence may be cited for violating OSHA, which could include a fine of up to $7,000 for a non-willful violation.  29 U.S.C. § 666(c).

Recognizing that workplace violence can never be fully prevented, OSHA has not promulgated mandatory regulations relating to workplace violence.  It has, however, issued the following recommendations to be voluntarily implemented by employers in order to reduce the chance of violence and to adequately address any violence that may occur:

  1. Establish a “zero tolerance” policy prohibiting violence against or by employees;   Place the policy in the employee handbook, and emphasize that all reports of crimes will be investigated and taken seriously.
  2. Provide safety education to employees.
  3. If possible, secure the workplace by adding video surveillance, extra lighting, and security guards.  Note: if implementing actual video surveillance is not an option, posting a sign stating that the premises is monitored by video surveillance may nonetheless be an effective crime deterrent.
  4. Consider implementing a “buddy system” for employees who work the night shift and must walk back and forth to their cars. If a security guard is on duty, inform employees that they may have the guard escort them to their cars.
  5. Provide drop safes to limit the amount of cash on hand.
  6. Equip field staff with cellular phones and hand held alarms, and require them to prepare a daily work plan and keep a contact person informed of their location throughout the day.

In addition, if an employee reports violence or suspicious behavior, OSHA recommends that employers take the following actions:

  1. Encourage employees to report all incidents and threats of workplace violence.
  2. Report violent incidents to the local police.
  3. Inform victims of their legal right to prosecute perpetrators.
  4. Look for trends or patterns of violent or suspicious behavior.
  5. Offer counseling sessions to help employees recover from traumatic incidents.
  6. Investigate all violent incidents and threats, monitor trends in violent incidents by type or circumstance, and institute corrective actions.

Given the general and vague character of the recommendations and the irrational nature of workplace violence, OSHA recommendations’ effectiveness in actually preventing violence is questionable.  Nonetheless, taking the minimum steps outlined above could lessen the likelihood of receiving an OSHA citation and will strengthen an employer’s defense should litigation related to workplace violence arise.

If you have any questions about workplace violence as it relates to your business, or any other employment law related matters, please do not hesitate to contact Adam D. Hirtz at ahirtz@lowenbaumlaw.com.