Indiana Business Lawyer Blog
Background
According to the Occupational Safety and Health Administration (“OSHA”), approximately 2 million American workers are victims of workplace violence each year. See www.osha.gov. In 2008, homicide was the third leading cause of fatal occupational injury in the U.S. and the second leading cause of death for females in the workplace. See Bureau of Labor Statistics, Census of Fatal Occupational Injuries Summary 2008, available at https://www.bls.gov/news.release/cfoi.nr0.htm.
The National Institute for Occupational Safety and Health (“NIOSH”) defines workplace violence as follows: “violence acts, including physical assaults and threats of assaults, directed towards a person at work or on duty.” See NIOSH, https://www.cdc.gov/niosh/about.html. OSHA expands the definition as follows: “Workplace violence is a physical assault, threatening behavior or verbal abuse occurring in the work setting. It includes, but is not limited to, beatings, stabbings, suicides, shootings, rapes, near suicides, psychological trauma, such as threats, obscene phone calls, and intimidating presence, harassment of any nature, such as being followed, sworn at or shouted at.” See OSHA, www.osha.gov.
Typically, workplace violence is placed into the following four categories:
Type 1 – Criminal intent or stranger: Perpetrator has no legitimate business relationship to the workplace or its employees and is typically committing a crime in conjunction with violence. Examples include robbery, shoplifting, trespassing and terrorism.
Type 2 – Customer/Clients: Perpetrator has a legitimate business relationship with the business or its employees and becomes violent while being served by the business or its employees. This includes violence by customers, clients, patients, students, inmates, etc.
Type 3 – Worker on Worker or Violence by Co-Workers: Perpetrator is an employee or past employee of the business who attacks or threatens employees or past employees.
Type 4 – Personal Relationships: Perpetrator usually does not have a relationship with the business but has a personal relationship with the intended victim outside of work. Often these include current or former spouses, lovers, relatives, friends or acquaintances.
Certain workers are at an increased risk for workplace violation, and among them are workers who:
§ Exchange money with the public § Deliver passenger goods or services § Work alone or in small groups during late night or early morning hours in high crime areas or in community settings in homes where they have extensive contact with the public.
This group includes the following professions:
§ health care and social workers, such as visiting nurses, psychiatric evaluators and probation officers;
§ community workers, such as utility employees, phone and cable TV installers and letter carriers;
§ retail workers; and § taxi drivers.
(OSHA, Fact Sheet for Workplace Violence, www.osha.gov (“OSHA Fact Sheet”).)
Federal Laws and Regulations
Currently, there are no federal laws or regulations that specifically address workplace violence although the OSHA Act Section 5(a)(1) (the “General Duty Clause”), provides that “[e]ach employer shall furnish to each of his employees employment in a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” As such, any workplace where a risk of violence or serious personal injury are significant enough to be “recognized hazards,” the General Duty Clause would require an employer to take steps to minimize the risk and failure to implement steps to minimize these risks could result in a violation of the OHSA Act under the General Duty Clause. Whether an employer could be cited under the General Duty Clause is dependent upon the specific facts of a unique situation. In order to prove a violation of the General Duty Clause, OSHA must establish:
§ employer failed to furnish a workplace free of hazards to employees;
§ the employer or the employer’s industry recognized the hazard;
§ the hazard caused or was likely to cause death or serious physical harm;
§ feasible means existed to eliminate or materially reduce the hazard; and § the employer knew, or with reasonable diligence could have known, of the recognized hazard.
These are difficult claims to prove, but still a possibility and employers should take the risk seriously and stay current with the industry standards.
OSHA has developed guidelines on workplace violence for certain industries that are at high risk for workplace violence. See Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers, OSHA Publication 3148 (2004) and Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments, OSHA Publication 3159 (2009), both available at www.osha.gov/sltc/workplaceviolence. These guidelines are merely best practices guides and do not create duties under the OSHA Act.
There are also several state statutes that are aimed to reduce workplace violence in specific industries.
Part 1 of 2 (Part 2 will be published on 6/28/10)
Jeremy L. Fetty is an associate at Parr Richey whose practice focuses on corporate law, utility law, municipal law, and labor and employment law. The statements contained herein are for information purposes only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have questions regarding this article, please contact an attorney.
