Workplace violence: A legal perspective

Clinics in Occupational and Environmental Medicine

Volumn 3, Issue 4, 2003, Pages 733-749

  Speer, Rebecca A ^a  

^a Speer Associates/Workplace Counsel   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; BEHAVIOR DISORDER; DENIAL; HUMAN; HUMAN RELATION; LEGAL ASPECT; LEGAL LIABILITY; MANAGEMENT; MORALITY; OCCUPATIONAL SAFETY; ORGANIZATION; PRODUCTIVITY; RISK BENEFIT ANALYSIS; STAFF TRAINING; THREAT; VIOLENCE; WORK ENVIRONMENT; WORKPLACE;

EID: 0348155853     PISSN: 15260046     EISSN: None     Source Type: Journal    
DOI: 10.1016/S1526-0046(03)00121-3     Document Type: Review

References (42)

1. Occupational Safety and Health Act, 29 USC § 654 (1970).
2. Barish RC. Legislation and administrative regulations addressing workplace violence. (citing Cynthia L. Attwood, Associate Solicitor for Occupational Safety and Health, US Department of Labor, Criminal Violence in the Workplace, May 13, 1992; OSHA Integrated Management Information System).
3. Megawest Financial, Inc. 1995 OSHARC LEXIS 80.
4. See, for instance, OSHA's industry-specific guidelines discussed below.
5. California Occupational Safety and Health Act, Cal Lab Code § 6400 (1973).
6. See United States Department of Labor. Occupational Safety and Health Administration, Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers (OSHA Publication 3148, 1998); Recommendations for Workplace Violence Prevention Programs for Late-Night Retail Establishments (OSHA Publication 3153, 1988).
7. Late night retail worker crime protection. Washington Administrative Code §§ 296-832-100, et seq. (2002); Convenience Business Security Act, Title 46, Florida Statutes, Crimes, §§ 812.1701, et seq. (2002).
8. See Cal-OSHA Guidelines for Security and Safety of Health Care and Community Service Workers (1993); Cal. Health & Safety Code §§ 1257.7 and 1257.8.
9. Code of Washington, 49.19.020 (1999, revised).
10. See Cal-OSHA Guidelines for Workplace Security (revised March 30, 1995); Cal-OSHA Model Injury and Illness Prevention Program for Workplace Security (March 1995); Cal. Lab. Code §§ 6307 and 6401.7; 8 Cal. Code of Regs. § 3203.
11. Barish RC. Legislation and administrative regulations addressing workplace violence. (citing "Violence in the Workplace," Regional Directive 5.05, Washington Industrial Safety and Health Services Agency, January 14, 1997).
12. Anderson T. Laying down the law: a review of trends in liability lawsuits, security management. Oct 2002, at 46 (citing recent study by Liability Consultants, Inc.).
13. See, for example, Onciano v. Golden Palace Restaurant, Inc., 219 Cal. App. 3d 385, 395 rev. den. 1990 Cal. LEXIS 2755 (1990) (holding that customers assaulted in restaurant parking lot could assert premises liability claim against restaurant owner); see also Ann M. v. Pacific Plaza Shopping Center, et al., 6 Cal. 4th 666, 673 (1993) (discussing the basic duty, determined in part by balancing the foreseeability of harm against the burden of the duty imposed, by a property owner to take reasonable steps to secure premises against third-party violence likely to occur in the absence of precautionary measures).
14. Onstad v. Payless ShoeSource, 3 P.3d 38 (2000) (affirming jury verdict).
15. See, for example, Peterson v. San Francisco Community College Dist., 36 Cal. 3d 799, 807 (1984).
16. See, for example, Ann M. v. Pacific Plaza Shopping Center, et al., 6 Cal. 4th at 678-79 (1993) (employing a balancing test and holding that, the greater the burden of providing the proposed security measures, the higher the degree of foreseeability that must exist before a duty to provide those measure will be imposed).
17. See, for example, Saelzler v. Advanced Group 400, 25 Cal.4th 763 (2001) (holding that a plaintiff asserting a premises liability claim must establish, by non-speculative evidence, some actual causal link between the plaintiff's injury and the defendant's failure to provide adequate security measures); Nola M. v. University of Southern California, 16 Cal. App. 4th 421, 437, rev. den. 1993 Cal. LEXIS 5067 (1993) (holding that abstract negligence unconnected to the injury in question will not support liability).
18. See, for example, Balard v. Bassman Event Security, Inc., 210 Cal. App. 3d 243, 247 (1989); Medina v. Hillshore Partners, 40 Cal. App. 4th 477, 485 (1995).
19. See, for example, Aaron v. New Orleans Riverwalk Assoc., 580 So. 2d 1119, 1121 (La. App. 1991), cert. den. 586 So.2d 534 (1991) (stating that, in determining whether an employee was acting in the course and scope of employment, the employee's conduct must be so "closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer's business"); Oslin v. Minnesota, 543 N. W. 2d 408, 413 (Minn. App. 1996), rev. den., 1996 Minn. LEXIS 231 (1996) (holding that the test of vicarious liability is not whether the conduct was authorized or forbidden, but whether it fairly could have been foreseen from the nature of the employment and the duties relating to it).
20. See, for example, Ernest v. Parkshore Club Apartments Ltd. Partnership, 1993 US Dist. LEXIS 10758 (N. D. Ill. 1993) (explaining that, under the doctrine of respondeat superior, "an employer may be liable for the negligent, willful, malicious and even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the business of the employer"); but see Oslin, supra, 543 N. W. 2d at 414 (noting that Minnesota courts had rejected standard that imposes vicarious liability solely where the employee's conduct was done in furtherance of the employer's interests); Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal. 4th 291, 297 (1995) (stating that California no longer follows the traditional rule that an employee's actions are within the scope of employment only if motivated, in whole or in part, by a desire to serve the employer's interests).
21. See, respectively, Maria D. v. Westec Residential Security, Inc., 85 Cal. App. 4th (2000), rev. den. 2001 Cal. LEXIS 1192 (2001); Slaton v. B&B Gulf Service Center, 344 S. E. 2d 512, 513 (Ga. App. 1986); Doe v. WTMJ, Inc., 927 F. Supp. 1428, 1435 (1996); Farmers Ins. Group, Inc. v. County of Santa Clara, 11 Cal. 4th 992 (1995); Aaron v. New Orleans Riverwalk Assoc., 580 So. 2d at 1121 (La. App. 1991), cert. den. 586 So.2d 534 (1991).
22. See, respectively, De Rosier v. Crow, 184 Cal. App. 2d 476, 480 (1960); Caldwell v. Farley, 134 Cal. App. 2d 84, 90 (1955); Sullivan v. Matt, 130 Cal. App. 2d 134, 141 (1955); Fields v. Sanders, 29 Cal. 2d 834 (1947); Carr v. Wm. C. Crowell Co., 28 Cal. 2d 652, 654 (1946); Simmons v. US, 805 F. 2d 1363, 1368-71 (9th Cir. 1986); White v. County of Orange, 166 Cal. App. 3d 566, 571-72 (1995); Turner v. Louisiana, 494 So. 2d 1292, 1295-96 (La. App. 1986); Applewhite v. City of Baton Rouge, 380 So. 2d 119, 121-22 (La. App. 1979); but see John R. v. Oakland Unified School District, 48 Cal. 3d 438 (1989), reh'g den., 1989 Cal. LEXIS 1733 (1989) (rejecting claim that sexual molestation of student during a school-sponsored program was connected sufficiently to teacher's employment to warrant school district's vicarious liability, because the teacher's job placed him in a position of trust that enabled the molestation).
23. See, respectively, Molloy v. US, 937 F. Supp. 1001, 1014 (Mass. 1996); Foster v. The Loft, Inc., 526 N. E. 2d 1309, 1312 (Mass. App. 1988), rev. granted, 403 Mass. 1102 (1988); Pittard v. Four Seasons Motor Inn, 688 P. 2d 333, 340 (N. M. App. 1984); Bryant v. Livigni, 619 N. E. 2d 550, 556 (Ill. App. 1993), app. den., 154 Ill. 2d 557 (1994); Perkins v. General Motors, 911 F. 2d 22, 32 (8th Cir. 1990), cert. den., 499 US 920 (1991).
24. See, for example, Simmons v. US, 805 F. 2d 1363, 1371 (claim for negligent supervision may be sustained where employer, through adequate supervision, would have learned of employee's misconduct); John R. v. Oakland Unified School District, 48 Cal. 3d 438 (1989), reh'g den., 1989 Cal. LEXIS 1733 (1989) (student sexually assaulted by teacher was permitted to pursue claim of negligent hiring and supervision).
25. Ward v. Visiting Nurses Association and Trusted Health Resources, No. 94-429997H, Massachusetts.
26. Grave v. Rainbow International Carpet Dyeing & Cleaning Co., No. 91-3616-CA-J, Florida (1994); McKishnie v. Rainbow International Carpet Dyeing & Cleaning Co., No. 91-3617-CA-J, Florida (1994).
27. See, for example, Connes v. Molalla Transport System, 831 P. 2d 1316, 1321 (Colo. 1992) (trucking company had no duty to perform a background check of nonvehicular convictions because long-haul driver has no more than incidental contact with people); Garcia v. Duffy, 492 So. 2d 435, 441-42 (Fla. App. 1986) (employer had no duty to make independent investigation of job applicant's background where applicant sought position that involved only incidental contact with the public).
28. See, for example, Yunker v. Honeywell, Inc., 496 N. W. 2d 419, 422 (Minn. App. 1993) (holding that a policy deterring employers from hiring workers with a criminal record would "offend our civilized concept that society must make a reasonable effort to rehabilitate those who have erred so they can be assimilated into the community"); Ponticas v. K.M.S. Investments, 331 N. W. 2d 907, 913 (Minn. 1983) (remarking that duty to perform check of job applicant's criminal record would contravene policy in favor of rehabilitation of past offenders).
29. See, for example, Patton v. Southern States Transportation, 932 F. Supp. 795, 801 (S. D. Miss. 1996), aff'd 136 F.3d 1328 (1998) (stating that the mere possibility of violence, as opposed to a violent propensity, is insufficient to sustain a negligent hiring claim).
30. See, for example, M.L. v. Magnuson, 531 N. W. 2d 849, 858 (Minn. Ct. App. 1995) (dismissing claim of negligent hiring because a reasonable investigation would not have revealed employee's violent past); Ort v. Estate of Stanewich, 92 F. 3d 83 1, 837 (9th Cir. 1996), cert. den., 117 S. Ct. 950 (1997) (dismissing claim of negligent retention because police officer's on-the-job record of excessive force and unwarranted violence in arrest and detention did not render his brutal attack, torture, and murder of a detainee foreseeable); Patton v. Southern States Transportation, 932 F. Supp. 800 (S. D. Miss. 1996), aff'd 136 F.3d 1328 (1998) (dismissing claim of negligent hiring because truck driver's previous conviction for possession of a firearm and cocaine did not evidence a propensity toward violence that rendered his assault of a co-worker foreseeable); Doe v. Capital Cities, 50
31. California does not permit employers to use in its hiring process information concerning arrests that did not lead to conviction and concerning the applicant's referral to and participation in a pretrial or post-trial criminal diversion program. Cal. Lab. Code § 432.7.
32. The policy should strike a thoughtful balance between the needs of the organization to prevent violence by excluding from its employment potentially violent persons, and a societal interest in facilitating the rehabilitation and reintegration of people who have been convicted of crimes.
33. New York Times, April 10, 2003. Penny Ferris v. Delta Airlines, 277 F.3d 128 (2001), cert. den., 123 S.Ct. 110 (2002).
34. Little v. Windermere Relocation, Inc., 301 F.3d 958 (2001).
35. See, for example, California Corporate Criminal Liability Act, Cal. Penal Code § 387 (1989), which holds corporations and managers criminally liable for knowingly failing to inform employees in writing of a known "serious concealed danger" that could result in death or great bodily harm. The maximum penalty for each violation of the provision is 3 years in state prison, $25,000 for each manager and $1 million for the corporation, or both.
36. Duffy v. City of Oceanside, 170 Cal.App.3d 666, 675 (1986).
37. States that have enacted reference-checking bills include Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Montana, Nevada, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.
38. See Randi W. v. Muroc Joint Unified School District, 14 Cal.4th 1066 (1997); but see Moore v. St. Joseph Nursing Home, 459 N. W. 2d 100, 102-03 (Mich. App. 1990) (holding that the "great societal interest" in protecting confidentiality of employment records outweighs any purported duty of employer to warn prospective employers of former employee's violent propensities).
39. See, for example, Adler R, Pierce E. Encouraging employers to abandon their "no comment" policies regarding job references: a reform proposal. Washington and Lee Law Review 1996.
40. See Moodie v. Federal Reserve Bank, 862 F. Supp. 59, 63 (S.D.N.Y. 1994), aft'd 58 F. 3d 879 (1995) (noting that a company's failure to apply its workplace violence policy uniformly and in a nondiscriminatory fashion could support a Title VII claim); Ward v. Bechtel Corp., 102 F.3d 199 (5th Cir. 1997) (noting that employer's reasonable handling of a workplace violence complaint could preclude claim of hostile environment under Title VII).
41. The Americans with Disabilities Act prohibits discrimination against persons with psychiatric disabilities. Although the act does not cover persons who present a "significant risk" of "substantial harm" to others because of their disability, the act and Equal Employment Opportunity Commission guidelines clarify that a company must base its threat assessment on the most current medical knowledge or best-available objective evidence. Employers who terminate or deny employment to persons based on fears generated by speculation, stereotypes, or myths about mentally ill individuals may be held liable for violating the act.
42. See Pettus v. E. I. Du Pont De Nemours & Co., 49 Cal. App. 4th 402, reh. den. 50 Cal. App. 4th 328B; rev. den., Cal LEXIS 7258 (1996) (holding that employer's access to confidential information related to a psychiatric examination of an employee, conducted after the employer learned of perceived threats of violence by the employee, seriously interfered with employee's right to privacy).