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17CORP______
© 2018 ARTHUR J. GALLAGHER & CO. | AJG.COM
Higher Education Practice
PREVENTING AND MANAGING THE THREAT OF WORKPLACE VIOLENCE Mark A. Lies II, Seyfarth Shaw LLP
Community College Risk Management Consortium 2018
© 2018 ARTHUR J. GALLAGHER & CO. | AJG.COM
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Higher Education Practice Mark A. Lies II
Chicago Office (312) 460-5877 mlies@seyfarth.com
Areas of Practice Litigation Product Liability Construction Safety and Health Litigation, Construction Workplace Violence Employment Law Environmental, Safety & Toxic Torts OSHA
Experience Mr. Lies is a partner in the Chicago office. His practice areas include product liability, occupational safety and health, workplace violence, construction litigation and related employment litigation which arises in these areas. He has developed related expertise in defending employers against claims of inadequate hazardous materials and fire safety response. Mr. Lies has advised numerous clients on a national basis from 1975 to the present on compliance with federal OSHA regulations for the control, removal, and handling of asbestos. Because of his work in this industry, he has defended related toxic tort litigation involving exposure to hydrogen sulfide, benzene, lead, silica, and other toxic substances. He is an adjunct member of several national safety organizations including the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA). He has written extensively on workplace violence and is the Editor of Preventing and Managing Workplace Violence, ABA Publication, 2008
Education J.D., DePaul University School of Law (1974) B.A., University of Notre Dame (1968)
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Higher Education Practice
• Employers spend $4.2 Billion/year due to workplace violence.
• More than 1000 homicides occur at work each year.
• Most common type of workplace victimization is simple assault.
• Domestic violence is the 3rd leading source of conflict leading to death in the workplace.
Workplace Violence by the Numbers
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• “Violence” means the attempted, threatened, or actual conduct that causes and/or is likely to cause injury, including any threatening statement or behavior which gives an employee reasonable cause to believe that he/she or other worker is at risk of injury.
Defining Workplace Violence
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• Type I Individual with no connection to workplace commits a crime.
• Type II A violent act by an individual directed to an employee at the workplace by customer/client.
• Type III Violent act by a current/former employee directed at another employee.
• Type IV Violent act at the workplace by a another person who has a relationship with an employee.
Defining Workplace Violence
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Title VII Civil Rights Act • Prevention of Workplace Harassment which
may lead to violence OSHA
• Safe Work Environment Common Law
• Negligent Hiring, Negligent Retention, Negligent Supervision, Negligent Training, etc.
Workers’ Compensation Protection for Victims of Domestic Violence
Legal Duties
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Americans With Disabilities Act • Disability v. Behavior • Pre-Employment Inquiries • Reasonable Accommodation
Background Checks • Employee Privacy and Fair Credit Reporting
Acts Defamation, False Light, Wrongful termination
Legal Limitations
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Criminal History
Polygraph Tests
Drug Testing
Paper and Pencil Testing
Legal Limitations
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General Duty Clause, Section 5(a)(1) of the OSH Act • Management Commitment and Employee
Involvement – “Zero Tolerance” (but not necessarily automatic
termination)
• Worksite Analysis
• Hazard Prevention and Control
• Safety and Health Training
OSHA Enforcement
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• Clear Statement of Policy – “Zero tolerance” – Definition of prohibited acts or threats (include
bullying) – Examples of prohibited acts or threats – Responsibility to report acts or threats – Encouragement of EAP use
• Identification of Response Team (Security, HR, Legal, Management, Psych Consultant)
Elements of an Effective Anti-violence Policy
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• Response Plans – (Weapons?) • Early Warning Signs (with caveats) • Actions as Indicators (with caveats) • Managers’ Responsibilities
– Communicate Policy to Employees – Know Response Team and Plan – Be Alert to Warning Signs – Seek Advice or Assistance from Team
Elements of an Effective Anti-violence Policy (Cont.)
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• Don’t Consider Safety First
• Don’t Ask the Right Questions
• Don’t Communicate Concerns Clearly and Early
Employees are wrong only if they…
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• Mishandled Termination or Discipline
• Disgruntled Former Spouses or Significant Others
• Weapons or Drugs on work site
• Retaliation by “Accused”
Potential Problem Sources:
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• Carrying Concealed Weapons (CCW) laws set forth the requirements for an individual to carry a concealed firearm in public—vary by state.
• Most states now allow citizens to carry concealed weapons in public. (Only DC does not).
Employers must consider their policies with respect to guns in employee cars or in the workplace. Policies will require a state-by-state analysis.
Guns in the Workplace
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Psychosis
Stroke
PTSD
Brain Tumor
Fear
Adolescence
Depression
Grieving
Hormones
Medication
Diabetes
Epilepsy
Senility
Stress
Bipolar Disorder
ADD
Exhaustion
Traumatic Situation
Mid-Life Crisis
Religious Zeal
Divorce
Amnesia
Puberty
Thyroid Problems
PMS
Poor Social Skills
Brain Damage
Alcohol
Anniversary of Loss High Fever
Personal Problems
Menopause
Schizophrenia
Crisis
History of Abuse
Illegal Drugs
Personality Disorder
Holidays
Health Problems
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Most Common Characteristics That Contribute to Violence
Personal Factors Alcohol
Aggressive History
Low Self Esteem
Lack of Social Support
Dysfunctional Personality Traits
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Most Common Workplace Factors That Cause Violence
Workplace Factors Perceived Injustice/ Mistreatment Job Insecurity/ Elimination Electronic Monitoring
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Inevitable Workplace Interactions
Interactions
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Personal Factors
Workplace Factors Interaction WORKPLACE
VIOLENCE
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• Erratic Emotions
• Alcohol/Substance Abuse
• Bizarre Actions and Thoughts
• Verbal Abuse & Argument
• Paranoia
Problematic Behaviors That Warrant Concern & Consultation
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• Co-Worker Fear
• Hopeless Statements or Actions
• Expressions of Intent to Harm
• Provocative Communications
• Refusal to Obey Policies or Procedures
Problematic Behaviors That Warrant Concern & Consultation
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Problematic Behaviors That Warrant Concern & Consultation
• Grievances
• Police Encounters
• Media
• Inappropriate Focus
• Continued Contact
• Identification
• Unrealistic Expectations
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• Project Calmness
• Be Empathetic
• Ask Questions
• Focus on Employee’s Concerns
• Acknowledge Employee’s Feelings
• Stay Near an Exit
Actions to Reduce Violence Potential if Confronted
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• Use Delaying Tactics to give Employee more time to calm down (offer water, etc.)
• Be Reassuring (break big problem into smaller, manageable problems)
• Ask for Employee’s Recommendations (repeat back requests)
• Calmly Explain the Consequences of any Violent Behavior
Actions to Reduce Violence Potential if Confronted
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• State Consequences of Violence • Keep Adequate Distance • Remove Potential Weapons from Area • Have Second Party Available/Present • Alert Security or Police if you FEEL in Danger • Do Not Allow Employee to Sit between You
and the Door
Dealing with an Aggressive Employee
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Distances for Normal Social Interactions
• Public – 12 or more feet
• Social – 4-12 feet
• Personal – 2-4 Feet
• Intimate – Direct Contact, 1-2
feet
• Distance should be appropriate for the situation
• Attackers can cover 21 feet in 1.5 seconds
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• Increasing Level of Agitation
• Excessive Emotional Attention Toward You
• Conspicuously Ignores You
• Facial Color Changes to Flush
• Changes from Total Lack of Cooperation to Cooperation (Set-up for Attack?)
Behavioral and Pre-Attack Cues
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• Shifting Feet to Boxer’s Stance
• Clenched Fists
• Target Glance - Looking for a Weapon to Use
• Conspicuously Looking Elsewhere while talking with you (Attempt at distraction or looking for escape route?)
• Depersonalizing Stare
Behavioral and Pre-Attack Cues
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EVACUATE If there is an accessible escape path, attempt to evacuate the premises, following these recommendations: • Have an escape route and plan in mind. • Evacuate regardless of whether others agree to follow • Leave your belongings behind • Help others escape, if possible • Prevent individuals from entering an area where the active
shooter may be • Keep your hands visible • Follow the instructions of any police officers • Do not attempt to move wounded people • Call 911 when you are safe
Active Shooter
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HIDE OUT If evacuation is not possible, find a place to hide where the active shooter is less likely to find you, with these recommendations: The hiding place should: • Be inconspicuous • Be out of the active shooter’s view • Provide physical protection if shots are fired in your direction (e.g., locating into
a bathroom and locking the door, staying as low to the floor as possible and remaining quiet and motionless)
• Not trap you or restrict your options for movement To prevent an active shooter from entering the hiding place: • Lock the door • Blockade the door with heavy furniture If the active shooter is nearby: • Silence cell phones and/or pagers • Turn off any source of noise (i.e., radios, televisions) • Hide behind large items (i.e., cabinets, desks) • Remain quiet and motionless
Active Shooter
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SELF-DEFENSE
If it is not possible to evacuate or hide, • Remain calm • Dial 911, if possible, to alert police to the active shooter’s
location • If you cannot speak, leave the line open and allow the 911
dispatcher to listen Take action against the active shooter and only when you believe your life is in imminent danger, attempt to disrupt and/or incapacitate the active shooter as follows: • Acting as aggressively as possible against him/her • Throwing items and improvising weapons • Yelling • Commit yourself to defensive physical actions
Active Shooter
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© 2018 ARTHUR J. GALLAGHER & CO. | AJG.COM
Higher Education Practice
Thank You!
Mark A. Lies II Seyfarth Shaw LLP 233 South Wacker Drive, Suite 8000 Chicago, Illinois 60606 (312) 460-5877 mlies@seyfarth.com
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