HR managers face legal aspects of workplace violence - human resource - Legal Trends

HR Magazine, Nov, 1993 by James H. Quirk

Because of media exposure, lawsuits, and the increasing incidence of workplace violence, what once seemed like a remote possibility has gained visibility as a significant legal issue as well as a safety problem. And HR managers increasingly are among those expected to address it.

Employers, who already walk a fine line between the rights of one employee versus the rights of all the others, find that line can become highly charged when the potential for violence exists.

For instance, employers are obligated to provide a safe, nonviolent workplace. They must control violent threats and if the need arises, respond immediately to reduce the impact of any violent incidents. Searches, discussions about an employee's threatening behavior, and inquiries into applicants' possible criminal records would all seem reasonable ways to protect against workplace violence. But these proactive steps can trigger issues related to an individual's right to privacy. So employers must be cautious when investigating an employee's behavior or an applicant's background.

Negligent hiring or retention

An employer can be held liable in certain cases in which an employee commits a violent act that injures either a fellow employee or a third party.

For an employee's injury, the employer's liability is generally limited to remedies under workers' compensation law--unless a supervisory employee or

other employer representative has intentionally assaulted the employee. Whether such benefits will apply to an injury caused by violence in the workplace depends on whether the violence is work-related. This will depend on the circumstances of each individual case. And the foreseeability of the injury-causing incident is a key factor in determining whether it was inherent in, or created by, the employment relationship.

When an employee attacks a third party, the courts often will assign liability to the employer when the employment in some way involved the risk of force being used against the third party. When an employee, by the nature of his or her employment, does not often come into contact with the public, the courts will assume there is no inherent risk or foreseeability of a violent event causing injury to a third party.

A third-party plaintiff ordinarily must prove the following five factors to sustain a claim for negligent hiring or retention after a violent episode:

* The existence of an employment relationship.

* The employee's incompetence.

* The employer's actual or constructive knowledge of such incompetence.

* The employee's act or omission causing the plaintiff's injuries.

* The employer's negligence in hiring or retaining the employee as the most likely cause of the plaintiff's injuries.

Of these, the bottom-line issue is "negligence."

Courts will hold an employer liable for the injurious acts of employees if the employer has breached its duty to use reasonable care in selecting employees--part of the employer's overall duty to maintain a safe workplace and to exercise reasonable care for the safety of the general public. Moreover, if the employer later discovers an employee's propensity for violence, the employer may become liable for that employee's subsequent violent acts under the negligent retention doctrine.

Prevention: First line of defense

Even before someone is hired, the question of a predisposition to violent behavior should be considered.

If the employer believes the applicant has a potential for violence, it is essential to investigate this concern without violating the applicant's right to privacy. A proper investigation should protect the employer from a potential negligent hiring action if the applicant becomes a violent employee.

Contact the applicant's former employers and if "red flags" are raised, pursue them. It is permissible to ask the applicant--on an application form, in an interview or both--whether he or she has a previous criminal conviction record. (In some states, like California, an applicant's arrest record is off-limits in the employment process, but criminal convictions must be disclosed if requested.) Even then, the offense should be examined for its "job-relatedness." Policies prohibiting the hiring of someone who has a conviction, regardless of the nature of the offense or when it occurred, have been found unlawful.

Employers are increasingly using personality and honesty tests as screening devices to evaluate job applicants. But, thus far, no diagnostic test accurately measures one's propensity for committing violence. In addition, if these tests disproportionately weed out women, minorities or other protected categories of applicants or employees, they will be found to have "disparate impact." And if an applicant or employee can show disparate impact, the employer must prove the procedure's job-relatedness or the likelihood that it will predict on-the-job success, as Congress recently reaffirmed in the Civil Rights Act of 1991. Employers should use such tests only if they are job-related and a valid predictor of job performance. Pre-employment testing may also implicate privacy concerns if test questions inquire into private matters.