Armed and Dangerous Protecting Your Employees from Violence

Report
Armed & Dangerous:
Protecting your employees from violence
Yendelela Neely Anderson, Kilpatrick Townsend & Stockton
Celeste Bradley, Blue Cross/Blue Shield Tennessee
Waverly D. Crenshaw, Jr., Waller Lansden Dortch & Davis
Sheldon W. Snipe, AT&T Services, Inc.
Maria A. Audero, Paul Hastings LLP
April 25, 2013
© 2013 Kilpatrick Townsend
Armed & Dangerous
THE FACTS
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• 2 million people are victims of workplace violence each
year
• In 2011, homicide
accounted for 17%
of all workplace
fatalities
• Homicide is the most
common cause of
workplace fatality in
women
• Relatives account for most workplace violence against
women
• Robbers account for most workplace violence against men
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LEGAL LANDSCAPE
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The majority of
states have no
legislature
regarding
rights with
regards to
guns in/around
the workplace
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16 states (and
counting) have
enacted laws
expressly
prohibiting
employers from
preventing
employees from
keeping their
guns in their
locked car in the
parking lot
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6 states have
enacted laws
requiring
employers to
post signs
regarding any
gun restrictions
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It is unlawful in 5
states to ask
employees or
job applicants
whether they
possess a gun
and/or to search
employees cars
for guns
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14 states (and
counting) limit
the liability for
employers who
cannot prohibit
employees from
keeping guns in
their locked cars
in the parking lot
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• Occupational Safety and Health Act (“OSHA”)
– No specific OSHA standard for violence
– General Duty Clause (OSH Act Section 5(a)(1))
• All employers have a general duty to provide their
employees with a workplace free from recognized
hazards likely to cause death or serious physical
harm
– OSHA has issued voluntary guidelines and
recommendations for employers seeking to reduce
the risk of workplace violence in at-risk industries
• For-hire drivers, late-night retail establishments,
healthcare and social workers
• Failure to adhere to the guidelines is not an automatic
violation of the General Duty Clause
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• Ramsey Winch v. Henry, 555 F.3d 1199 (10th Cir. 2009)
– Challenge to Oklahoma bring your gun to work law
– Reversed trial court ruling that gun-related workplace
violence was a “recognized hazard” under the general
duty clause, and, therefore, an employer that allows
firearms in the company parking lot may violate the
OSH Act.
– Noted “an employee's general fear that he or she may
be subject to violent attacks
is not enough to require
abatement of a hazard under
the general duty clause”
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TENSIONS RISING
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• Federal Limits:
– “Enforcement Guidance on the Consideration of Arrest
and Conviction Records in Employment Decisions
Under Title VII of the Civil Rights Act of 1964,” issued
April 25, 2012
– August 2012: EEOC announced focus on
discrimination cases stemming from background
checks
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• State Limits:
– “Ban-the-box” legislation: prohibits employers from asking
about criminal convictions on an initial employment
application
• Several states and cities have such laws
– Some states have deemed it unlawful under some
circumstances to refuse to hire an applicant or take adverse
action because of a criminal conviction
– Some states permit inquiry into criminal background but limit
the scope, for example:
• Prohibit questions about arrests that did not result in convictions
• Limited ability to ask about “old” convictions
• Limited ability to ask about misdemeanors or certain first
offenses
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• The federal and state limits on employee background
searches can be fertile ground for negligent hiring
claims
– Negligent hiring claims arise when a person suffers
harm at the hands of an employee and blames the
employer’s failure to conduct a reasonable
investigation of the applicant’s background
– Typical elements of claim:
• Employment relationship (consider independent
contractors; subcontractors relationships)
• Employee is dangerous, unfit or incompetent
• Employer should have known or did in fact know
• Employee’s dangerous propensities were cause of injury
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14 states (and
counting) limit
the liability for
employers who
cannot prohibit
employees from
keeping guns in
their locked cars
in the parking lot
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5 states limit the
liability for
employers
regarding
decisions on
whether to seek
temporary
restraining
orders on behalf
of employees
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• Courts generally ask the following questions regarding
negligent hiring:
– Did the employer know or should have known of an
employee’s potential risk?
– Could the risk have been discovered by a reasonable
investigation?
• What’s at stake:
– Raegan et al v. Dunaway Timber Company (2011): Negligent
hiring case where Arkansas jury awarded $7 million in
damages to a the family of an Arkansas truck driver killed in
an accident.
– Linhart v. Heyl Logistics, LLC, et al. (2012): Oregon jury
awards $5.3 million in damages on a negligent hiring case
against Washington Transportation for failing to conduct
background check and verifying driving record.
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Courts ask the following questions regarding negligent hiring:
• Did the employer know or should have known of an
employee’s potential risk?
• Could the risk have been discovered by a reasonable
investigation?
2011 – Arkansas jury awarded $7 million in damages to a the
family of an Arkansas truck driver killed in an accident. Claim
of negligent hiring was brought against a timber company and
its driver. Raegan et al v. Dunaway Timber Company et al
3:10-CV-03016
2012- Oregon jury awards $5.3 million in damages on a
negligent hiring case against Washington Transportation for
failing to conduct background check and verifying driving
record. Linhart v. Heyl Logistics, LLC, et al., Case NO. 1003100- PA
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CRISIS MANAGEMENT AND
MITIGATING VIOLENCE
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• Effective Workplace Violence Crisis Management
Protocol
– Step 1: Assessment
• Develop Management Team
• In-House Resource
• Political Dynamics
– Step 2: Coordinated Buy-In
• Approach
• Options
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• Effective Workplace Violence Crisis Management
Protocol (continued)
– Step 3: Educate and Train
• Supervisor Training (early warning signs; de-escalate
tension; prompt reporting)
• Wide Policy Coverage (Zero Tolerance; Open
Communication; No Retaliation)
• Review And Enhance Security Measures
• Cooperative Relationship With Law Enforcement
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• Effective Workplace Violence Crisis Management
Protocol (continued)
– Step 4: Investigation
• Timeframe
• Reporting to
Management
– Step 5: Decision Points
• Access
• Articulate
• Understand
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• Plan Implementation
– Communication
• Decision-maker
• Stakeholder
• Public
– Progress
• Step by Step
• Effectiveness
– Reassessment
• Trends
• Effectiveness
• Feedback
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Questions?
ATLANTA
AUGUSTA
CHARLOTTE
DENVER
DUBAI
LOS ANGELES
NEW YORK
RALEIGH
SAN DIEGO
SAN FRANCISCO
SEATTLE
SHANGHAI
SILICON VALLEY
STOCKHOLM
TAIPEI
TOKYO
WALNUT CREEK
WASHINGTON D.C.
WINSTON-SALEM
www.kilpatricktownsend.com

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