For many, the thought of workplace violence is similar to that of neighborhood violence: “that could never happen in MY neighborhood.” Odds are, however, that during the course of one’s career, violence or the threat of violence will rear its ugly head. This edition of the HR Law Insider is intended to help employers get ahead of violent situations. Being proactive, instead of reactive, mitigates the risk and liability associated with workplace violence.
DO NOT WHISTLE PAST THE GRAVEYARD: EARLY RECOGNITION OF PROBLEMS
Businesses and their employees often miss obvious clues that a violent situation is brewing. In my experience, the following red flags often occur before a situation spirals out of control:
* Employee exhibiting bizarre or anti-social behavior
* Spouse of employee acting aggressively in break-up or divorce scenario
* Over the top reaction to discipline or termination
* Emails that contain either express or implied threats
* Anonymous emails or other communications with express or implied threats
* Employee financial and marital life in tatters — “nothing to lose mentality”
* Employee known to own firearms, coupled with anger issues and/or talk about using the firearms
* Employee posting threats on social media
This is certainly not an exhaustive list. Any number of clues will present themselves that SHOULD forewarn alert business owners and employees to prospective or active risks.
To be sure, there is often a fine line between an employee who poses a risk and one who is harmless — simply struggling with life’s challenges. Judgment calls are sometimes very difficult. Simply being aware of a potential threat provides conscious employers with the OPPORTUNITY to make that decision, while ignorant employers remain clueless and subject to the fates.
EMPLOYER OPTIONS AFTER A THREAT IS IDENTIFIED
Dealing with the Active Threat
911 is the obvious choice when there is an imminent threat of harm. Employers should also have a plan in place as to (1) how they will notify employees and third parties to take steps to protect themselves while a dangerous situation is unfolding and (2) where people should go and what they should do (or not do).
In many instances, “no battle plan survives contact with the enemy.” In a fluid situation it is thus very important to keep one’s cool, rely on one’s common sense and training (if one has training), and contact the police or other professionals.
It is prudent for employers to have legal counsel’s cell phone number on speed dial for use when the unexpected occurs. Businesses should be comfortable knowing that they can call counsel at any moment of the day or night if a situation requires immediate action. Counsel can be used to develop an immediate plan or simply to confirm that the employer is undertaking a prudent plan.
By way of example, I was recently able to convince the police to immediately get out to a client’s property where there was an unstable, paranoid apartment resident acting bizarrely with a gun in his pocket. Before my call to the police, the police had essentially told the client they “couldn’t do anything” until something bad happened. The police removed the unstable resident within an hour and the threat was avoided.
Dealing with the Potential Threat
Hiring a security guard or off-duty police can be an effective way of dealing with a threat that is unlikely to last for more than a week or two (obviously, some employers have full-time security depending upon their location, business, and other factors).
Self-help — removing a potential threat by terminating an employee or removing someone from the workplace — is often the best option for employers confronting potentially violent behavior. However, when self-help is impractical or unsuccessful, Arizona law provides additional options for dealing with threats.
Arizona employers can file for an injunction against workplace harassment to keep a threatening person out of the workplace. “Harassment” means a “single threat or act of physical harm or damage or a series of acts over any period of time that would cause a reasonable person to be seriously alarmed or annoyed and includes unlawful picketing, trespassory assembly, unlawful mass assembly, concerted interference with lawful exercise of business activity…”
Injunctions are quickly and easily obtained as long as the employer presents solid evidence showing there has been “harassment.” There is little downside to filing for an injunction because “an employer is immune from civil liability for seeking or failing to seek an injunction under this section unless the employer is seeking an injunction primarily to accomplish a purpose for which the injunction was not designed.”
There is a similar Arizona statute prohibiting cyber-harassment, also known as cyber-stalking. With the rise of the internet and social media, cyber-stalking has become a “popular” way to harass and attack employers.
One must always ask: will seeking an injunction resolve or further inflame the situation? This is often a difficult question to answer. No two situations are alike. Employers should retain counsel to help perform a cost/benefit analysis and obtain the injunction — if that is the chosen course of action.
CONCLUSION: BE AWARE AND HAVE A PLAN
“If you think education is expensive, try ignorance.” Derek Bok
Businesses should take responsibility for (1) having a plan when confronted with a violent situation and (2) identifying potentially threatening situations. Employers have many tools to deal with such situations, including contacting the police, calling legal counsel, engaging in self-help, hiring a security guard, and obtaining an injunction against harassment. A small amount of planning can secure peace of mind, reduce the risk of liability, and, most important, keep you and your employees safe.