Workplace Violence: How to Curb Your Establishment's Risk.
By Kathleen Pohlid Founder & Managing Member, Pohlid, PLLC | August 10, 2014
Workplace violence imposes a staggering toll on businesses. Aside from the loss of life and injury posed to employees, customers, and others, workplace violence can diminish an establishment's brand, adversely affect its work environment and employee performance, pose significant liability concerns, and result in significant expense. However, you can reduce the risk for workplace violence in your establishment.
The first step in addressing workplace violence is to develop an awareness of what it is and the risk it may pose to your establishment. The term "workplace violence" extends beyond physical acts of violence or incidents of homicide. The Occupational Safety and Health Administration ("OSHA") defines "workplace violence" to include "any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site." Even when workplace violence goes unreported, it poses adverse effects upon the workplace and the appeal of an establishment.
Failure to take precautions to prevent workplace violence could implicate potential claims for workplace discrimination, civil liability, and result in potential OSHA violations. Under the Occupational Safety and Health Act of 1970, 29 U.S.C. §650, et seq., employers are required to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees." 29 U.S.C. §654(a)(1). Recently, OSHA has begun citing employers under this provision, commonly referred to as the general duty clause, for failure to address workplace violence hazards.
For example, earlier this year, OSHA entered into a corporate wide agreement with a Florida employer as part of a settlement involving workplace violence violations. Under the settlement, the employer, which operates correctional facilities in numerous locations across the country, is required to develop and maintain a workplace violence prevention program and conduct onsite workplace violence safety audits. Additionally, the employer is required to create a corporate level workplace violence coordinator and a workplace safety committee at each of its facilities.
In 2012, OSHA issued a Texas based convenience store owner with four serious violations relating to workplace violence following an aggravated robbery that resulted in the death of a store clerk, who was working alone when she was robbed and set on fire. OSHA determined that the fact that the employee was handling money, working alone, and standing behind open counters posed a significant risk to the employee for violent crimes. OSHA also concluded that this incident might have been avoided if the employer had conducted an analysis to identify the risk for violence and implemented workplace violence prevention measures. As a result of its investigation, OSHA issued general duty clause violations for each of the employer's stores for failure to address workplace violence hazards.
OSHA maintains a workplace violence webpage – www.osha.gov/SLTC/workplaceviolence - as a resource for employers to address the hazards associated with workplace violence. OSHA identifies several factors which may increase this risk including: exchange of cash with the public; isolated work environments; work performed late at night; environments where workers are alone or in small groups; employees who work as customer service agents; workers who provide services and care; and workplaces where alcohol is served. Each of these risk factors could apply with respect to businesses in the hospitality and restaurant industries.
Establishments in the hospitality industry should be especially concerned about prevention of workplace violence as most jurisdictions impose a legal duty upon them to protect guests from foreseeable criminal attacks. In general, an establishment owes its guests a duty to protect them from harm which is foreseeable. This may include failure to remedy foreseeable dangerous conditions which pose a threat to guest security and to protect guests from criminal attacks, including questioning suspicious persons on the premises.