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Presenting a live 90‐minute webinar with interactive Q&A
Workplace Violence Prevention:Workplace Violence Prevention:Legal Considerations for EmployersCrafting and Enforcing Anti‐Violence Policies and Complying With New OSHA Directives for Employee Safety
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
WEDNESDAY, DECEMBER 21, 2011
Today s faculty features:
Barbara E. Hoey, Shareholder, Littler, New York
Thomas Benjamin Huggett, Shareholder, Littler, Philadelphia
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LITTLER MENDELSON, P.C.
W k l Vi l Workplace Violence Prevention: Legal gConsiderations
5
Understanding Workplace
genda Understanding Workplace
Violence
Understanding Legal Issues– OSHA Enforcement
– EEOC Enforcement of the ADAADA
– Workers’ Compensation
– Personal Injury
Practical Suggestions for Addressing Workplace Vi lViolence
6
Violence in the U.S.: The Statistics
U.S. has the highest number of incidents of interpersonal violence per capita of any nation not engaged in civil war
U.S. has a rate of violence greater than four times that of any other nation
In 2003, gunshots became the number one killer in the United States
One in five high school studentscarry weapons (an estimated 270,000 guns are carried to270,000 guns are carried to school daily)
7
Legal Issues –Occupational Safety and Health Act (OSHA)
N di t l ti No direct regulation
Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments
Guidelines for PreventingGuidelines for Preventing Workplace Violence for Health Care and Social Service Workers
“General Duty Clause:” “General Duty Clause:” employers must provide a workplace free from recognized hazards that can result in deathhazards that can result in death or serious injury. 29 U.S.C. § 654(a) 8
Legal Issues OSHA Legal Issues – OSHA
Industry specific violence prevention guidelines Industry-specific violence prevention guidelines (informational only and no compliance obligations) include:– Top management involvement in implementing a violence
prevention program.
– A written violence-prevention program for larger organizations.p p g g g
– A threat assessment team to evaluate the employer’s vulnerability to violence.
Appropriate engineering controls and work practices; and– Appropriate engineering controls and work practices; and
– Staff training on security awareness and self-protection.
9
Legal Issues OSHA Legal Issues – OSHA
Enforcement Procedures for Investigating or Enforcement Procedures for Investigating or Inspecting Workplace Violence – OSHA Compliance Directive – September 8, 2011– An instance of workplace violence is presumed to be work
related if it results from an event occurring in the workplace
– Employers may be found in violation of the general duty clause if they fail to reduce or eliminate serious recognized hazards
– OSHA will conduct inspections where there is a complaint, referral, fatality or catastrophe
• Not directly inspecting co-worker threats of violence
– Review of feasible means of abatement
10
Legal Issues –Americans with Disabilities Act (ADA)
Abusive, potentially violent employees may have diagnosed mental illness
Strict EEOC Guidelines concerning psychiatric disabilities
Legal limitations on employeeLegal limitations on employee threat assessments
Legal prohibitions on disclosure of medical information to otherof medical information to other employees
11
Legal Issues –Americans with Disabilities Act (ADA)
Focus on the conduct, not the mental condition
Apply policies concerning workplace violence consistentlyp y
Include the ability to perform work safely in job descriptions
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State Laws Protecting Victims of Violence
34 states have laws providing some 34 states have laws providing some protected leave for victims of violence.
Q lifi ti f l Qualifications for leave vary:– Some leaves apply to victims of crime in
general, others extend only to victims of domestic abuse, sexual assault, and related crimes.
Duration of leaves vary:– Time off to participate in investigation or
prosecution.
– Up to 12 weeks for legal action medicalUp to 12 weeks for legal action, medical care, counseling, and relocation.
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Weapons in the WorkplaceWeapons in the Workplace
Implications of Conceal/Carry Laws
Second Amendment Issues
14
Conceal and Carry LawsConceal and Carry Laws
Laws providing for the Laws providing for the legal carrying of concealed weapons is highly localized.
48 States currently h l ittihave laws permitting concealed weapons.
Some municipalities Some municipalities have particular laws and regulations concerning weapons
15
Legal Issues NegligenceLegal Issues – Negligence Negligent Hiringg g g
Negligent Training
N li t R t ti Negligent Retention
Negligent S i i / C t lSupervision/ Control
Negligent Reference
Failure to Warn Targeted Victims
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Other Legal IssuesOther Legal Issues Defamation of character
Privacy: public disclosure of confidential facts
Constructive wrongful discharge
Retaliation for safety complaints
Workers Compensation Injury Claims
Workers Compensation Stress Workers Compensation Stress Claims
Rights/obligations under collective g gbargaining agreement
17
Practical Suggestions for Practical Suggestions for Addressing Workplace Violence
18
Being Prepared:Being Prepared:
Proactive Proactive Measures
Reactive MeasuresMeasures
Post-incident measures
19
Proactive Measures:A Well-Drafted Policy
M k l “ l i ” Makes a clear “no toleration” statement
States the problem and concern for its human and operational costs
Demonstrates your company’s commitment
Defines exact behavior prohibited
States your company’s goal without creatingStates your company s goal without creating unnecessary legal/contractual obligations
Don’t say “The Company will take ALLDon t say The Company will take ALL measures to prevent workplace violence”
20
Proactive Measures:A Well-Drafted Policy
Contemplates threats from third parties Contemplates threats from third parties
Plainly describes reporting requirements and proceduresprocedures
Defines the consequences for violations
Provides actual deterrent
Sets the foundation for eliminating hesitation in ireporting concerns
Creates diminished right of privacy for f hi l b l i dpurposes of searching personal belongings and
vehicles. 21
Proactive Measures:Implement a Hiring Process That Implement a Hiring Process That
Minimizes Risk Be consistent
Use an application form
W f– Warn of consequences for providing false informationinformation
Conduct thorough background checksbackground checks
– Post-offer, pre-employmentemployment
22
Proactive Measures:Effective Training
B ild th “ t l ” th Builds on the “no tolerance” theme
Educates employees that the “little signs” and “gut feelings” are vitalgut feelings are vital
Teaches employees the steps to follow in reporting violence ― actual, perceived, or p g , p ,threatened
Reduces the tolerance for threats or violence in any form
Includes psychological, legal and security issues
Potentially offered at new hire stage and at regular intervals 23
Proactive MeasuresProactive Measures
Use of Employee Use of Employee Assistance Programs effectively
Discipline employees for making threats or engaging in intimidating behavior
Distribution of a zero-tolerance violence in the workplace policy
Provide employees with conflict resolutionconflict resolution training
24
Proactive Measures:Preparing for Employee Confrontation
Don’t let employee know that a meeting is scheduled – take them by surprise so that they do not have time to prepare.not have time to prepare.
Have at least two members of management present.present.
When an employee is being evaluated, make sure you say good things y y g gabout the employee as well as critical things.
Make sure security is on ynotice and/or can easily be reached.
25
Proactive Measures:Establish Incident Response Team
Senior Management with Senior Management with Authority to Mobilize the company’s Resources (GC and /or Sr. VP))
Human Resources/ Workforce Relations
Legal Counsel
Risk Management/Insurer
Global Security/Outside Global Security/Outside Resources
Local Law Enforcement
Psychological Experts26
Reactive Measures:Create Action Plan
Have an action plan BEFORE crisis occurs
Like fire drills, practice in non-emergency situationsemergency situations
27
Reactive Measures:M t P t ti St D i Management Protection Steps During
Confrontation
N tt k l Never attack an employee –no insults or yelling.
Always remain calm when you talk.
Make sure you keep a good distance between yourself yand the employee
Stay close to the door in case you need to quicklycase you need to quickly leave.
Be mindful of special precautions if concealedprecautions if concealed weapons are suspected.
28
Reactive Measures:When Crisis Occurs
I di t l I id t R T Immediately summon Incident Response Team
Immediately contact law enforcement and emergency response officialsresponse officials
Prevent perpetrator from entering premises/get and keep off premises
29
Post incident MeasuresPost-incident Measures
R f l f i ti t Referral of victims to appropriate resources, including medical centers, counseling services victimscounseling services, victims advocacy groups, legal aid, and domestic violence shelters.
Providing flexible work hours or short term-extended leave
Conduct an employee debriefing within 24-48 hours after a violent incident to e plain hat steps are beingexplain what steps are being taken by employer.
30
Post-incident MeasuresCommunications Plan
I t l C i ti Internal Communications and Confidentiality Requirementsq
Documentation Distribution Controls
Role of Public Relations and Public Access
Developing a Public Relations and Communication PlanCommunication Plan
31
Thank YouYouBarbara E. HoeyBarbara E. Hoey(212) 497-8488bhoey@littler.com
Thomas Benjamin Huggett(267) 402-3035(267) 402 3035tbhuggett@littler.com
32
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