I.

INTRODUCTION

"Workplace violence" has become an all too familiar phrase in the lexicon of human resources professionals around the country. From the seemingly ubiquitous reports about U.S. Postal Service employees to the recent notorious school violence incidents, employers are increasingly responding to the fact that the workplace is no longer safe by establishing Critical Incident Response teams and crossing their fingers that they never have to be used.

Few doubt the need for or wisdom of these teams. According to the most recent statistics, workplace violence has had a staggering effect on American businesses. In late July 1998, the Bureau of Justice Statistics issued data gathered from the National Crime Victimization Survey for 1992 through 1996. The numbers are staggering:

• Each year between 1992 and 1996, more than 2 million U.S. residents were victims of a violent crime while they were at work or on duty.
• More than 1,000 workplace homicides occurred annually.
• About 40% of victims of nonfatal violence in the workplace knew their offenders.
• Retail sales suffered the greatest number of violent victimizations, followed by law enforcement, then teaching.
• During the operative time period, 56% of employers who experienced workplace violence were in the private sector, while state and local government employers accounted for 34% of such incidents.
• While almost 60% of victims were attacked by strangers, over 35% knew the perpetrator (female victims were as likely to be confronted by someone they knew as by a stranger).
• The most common type of workplace victimization was simple assault (1.4 million incidents per year).

The cost of workplace violence to employers in the United States has been estimated to be anywhere from 4 to 6 billion dollars or more annually. The workplace homicides and suicides described above, however, are merely the "tip of the iceberg" of workplace violence.

A 1993 survey conducted by the Northwestern National Life Insurance Company concluded that over 2 million U.S. workers were physically attacked, over 6 million were threatened, and over 16 million were harassed. A 1994 Gallup Poll survey reported that two out of three employees do not feel safe at work.

Unfortunately, it is difficult to tell whether you have taken all adequate steps until you actually have to respond to a crisis; by then, it may be too late. In this session we will put these teams to the test and see how well they will work in an actual occurrence of workplace violence. We will walk you through a simulated crisis, addressing a highly fluid and volatile situation from human resources, legal, and security perspectives.

II.

THE BASICS: WHAT YOU NEED TO KNOW ABOUT WORKPLACE VIOLENCE AND HOW TO RESPOND

In order to effectively address workplace violence, employers must understand the various types and levels of violence that have been identified over the years. With this knowledge, they can take steps to diminish and eliminate the problems.

A.

Levels Of Workplace Violence

Violence in the workplace takes many forms. It is not just homicide or physical destruction. It can include verbal abuse, threats, harassment, intimidation, etc. At one end of the continuum are relatively mild instances of workplace violence that do not involve any significant property destruction or damage to the physical well-being of the individual. These types of violence have been designated as Level One Violence. At the other end of the continuum are instances that result in destruction of property, as well as serious injury or death to co-workers. These types of violence have been designated as Level Three Violence. In between, Level Two types of violence can cause significant stress and psychological damage to workers. These behaviors create a hostile environment for employees and are considered to be a bridge to very overt and dangerous behavior. The three levels of violence are described as follows:

1. Behaviors that typify level one violence include:
• Verbal abuse;
• Excessive use of profanity;
• Consistently argumentative interactions; Failure to cooperate with supervisor/co-workers;
• Inappropriate sexual comments;
• Negative attitude towards policies/procedures;
• Instigating harmful rumors;
• Expressing suicidal thoughts; and
• Frequent displays of anger: clenched fists, red face, tight jaw, etc.

Level One behaviors should be taken seriously by co-workers and management. They often precede Level Two and Level Three behaviors. Intervening at this level can prevent escalation to the next levels.

2. Behaviors that typify level two violence include:
• Expressing a desire/intent to harm others;
• Open disobedience of policies/procedures;
• Vandalizing/stealing property for revenge;
• Feeling persecuted by others;
• Sending sexual/violent notes to others;
• Making suicidal threats/gestures; and
• Consistently acting out anger: slamming doors, punching walls, instigating fights, etc.

As noted above, Level Two behaviors can be a bridge to the more serious Level Three behaviors. Intervention at this level is more difficult than at Level One, but intervention is possible and could prevent escalation to Level Three behaviors.

3. Behaviors that typify level three violence include:
• Physical Assaults — Minor: spitting, hitting, fighting, etc.;
• Physical Assaults — Major: murder, rape, etc.;
• Major destruction of property: arson, explosives, etc.;
• Attempting/committing suicide; and
• Armed robbery.

III.

WARNING INDICATORS

While no precise formula can determine who is likely to commit co-worker homicide, a number of signs can indicate increased risk for a serious occurrence of workplace violence. Understanding these indicators and paying attention to them are vital to preventing a serious incident of violence. Among the more prominent warning indicators are:

A.

Emotionally Erratic Behavior

This behavior includes sudden and intense shifts in emotion, intense and unstable relationships, rapid change from idealizing to condemning a supervisor or co-worker, and acting impulsively and without forethought.

B.

Romantically Obsessed Behavior

Individuals who exhibit this behavior harbor the mistaken idea that another person is in love with them and that they are destined to be together — if not in this life, then in the next. The romantically obsessed individual may attempt to injure or kill the love object, or a friend or spouse of the love object, as well as themselves.

C.

Depression

This behavior involves feelings of sadness, loneliness and despair, diminished interest in formerly pleasurable activities, a loss of hope for the future, and a diminished level of energy. Other signs include sleep and eating difficulties, a poor self-concept, lack of self-confidence and the feeling that life is not worth living. Always consider the possibility of suicide or homicide/suicide when someone is seriously depressed.

D.

Tendency To Blame Others

This behavior involves the tendency not to accept responsibility for one’s actions. Blamers see themselves as victims and believe that other people are the sole cause of their problems. They often carry grudges against others and seek revenge on others for perceived misdeeds because they believe that revenge is necessary for self-defense.

E.

Hostility

This behavior includes the tendency to react with anger and aggression to a wide variety of situations, often with little provocation. Hostile individuals are often described as having a "chip on their shoulder" and being unable to contain their anger. Other people tend to avoid them or let them have their own way in an attempt to avoid conflict.

F.

Fascination With Weapons

This behavior includes an obsession with weapons, particularly exotic types of weapons, and their killing power. In some instances, a large portion of an individual’s time and energy is devoted to guns and gun paraphernalia.

G.

History Of Violence

This behavior includes the use of violence as a means of coping with difficult situations, meeting a need, or resolving a conflict. Individuals who have been "rewarded" for violent behavior in the past are more likely to use it again in the future.

H.

Excessive Demands On Supervisor’s Time

This involves a supervisor spending a disproportionately large amount of time with an employee during the work week. This time may be spent on dealing with motivational and performance issues, resolving conflicts and attempting to deal with the employee’s needs which, at times, can be excessive.

I.

Inconsistent Work Patterns And/Or Reduced Job Efficiency

This behavior involves a wide variation in work performance. It sometimes indicates the presence of excessive stress, substance abuse or insubordination.

J.

Poor On-The-Job Relationships

This behavior includes difficulties in getting along with co-workers, frequent arguments and disagreements, and the inability to adequately function as a team member.

K.

Safety Issues

This behavior includes a deliberate disregard for safety practices or repeated involvement in accidental behaviors that jeopardize co-worker safety.

L.

Poor Health And Hygiene

This behavior includes a noticeable decline in health and/or personal hygiene. Problems with health and hygiene may indicate excessive stress, substance abuse, depression or other mental health difficulties.

M.

Previous Threats/Threatening Actions

People who threaten others are considerably more likely to commit a violent act.

IV.

WHAT TO DO? THE FIVE-STEP PROGRAM

Understanding the scope and impact of workplace violence, being aware of the types and levels of violence, and recognizing the types of behaviors that are associated with serious violent behavior are all important aspects of dealing with the problems associated with workplace violence. During the past decade, tools and techniques have been developed to stem the rising tide of workplace violence. When crafted into a comprehensive program, these tools and techniques can help reduce an organization’s chance of being devastated by a serious act of workplace violence.

A.

Establish A Workplace Violence Prevention Team

The focal point of any workplace violence prevention initiative is the Workplace Violence Prevention Team (VPT) (for those less optimistic, also known as a Crisis Management Team). This Team administers, communicates and maintains the organization’s workplace violence prevention policies, procedures and guidelines. The Team is responsible for ensuring that managers and employees are trained to identify potentially violent individuals and respond appropriately to incidents and threats of violence.

The Team is composed of members from different functional areas of the organization. Members work together to ensure that the workplace violence prevention plan is properly developed, implemented and supported.

The Team is responsible for implementing the Workplace Violence Prevention Initiative. This includes communicating, administering and evaluating the workplace violence prevention and crisis response policies, procedures and guidelines. The Team is also responsible for reviewing and conducting the Violence Vulnerability AuditÓ and taking appropriate action to correct areas of concern. Additionally, the Team is responsible for ensuring that workplace violence prevention training is delivered to all management and employees.

B.

Vulnerability Assessment

Assessing an organization’s systems, employees and customers is crucial to determining the degree of vulnerability that exists. In some instances, senior and middle management are not aware of the potential for violence present in the organization they were chartered to lead.

Assessing your workplace’s vulnerability to violence is a fast, efficient and inexpensive approach to identifying and reducing risk. In addition, the process of conducting these assessments has an important secondary gain. Conducting the assessments provides a clear, undisputed educational message to all employees: the behaviors defined as Level One, Two and Three are inappropriate and will not be tolerated in the workplace. Combining an audit that assesses your systems, policies and procedures with a survey that assesses employee behavior and customer perceptions is considered "best practice" procedure for determining the extent of vulnerability.

The assessment should examine key security elements, utilizing both quantitative and qualitative criteria, to produce specific action-oriented recommendations for improvement. Some of the security elements that are weighed, assessed for compliance and trend, and documented for improvement are:

• Procedures for responding to threats and acts of violence;
• Training and education;
• Physical security systems;
• Communication practices;
• Human resources practices;
• Incident assessment, investigation, documentation;
• Agency relationships;
• Work practices;
• Customer/vendor relations; and
• Protocol for post hoc investigation and evaluation of incidents.

C.

Establish Policy And Procedures

As your organization strives to maintain a safe and secure workplace, you will be confronted with the challenge of responding to threats and acts of violence. Your response to such incidents should not be random and haphazard but, rather, well thought-out and carefully planned. Roles should be clearly defined, policy developed, and procedures sequenced to provide the greatest chance for successful intervention.

A formal, written workplace violence policy is a central component of any intervention and prevention plan. The policy should:

• Define workplace violence;
• Provide examples of a "threat of violence" and an "act of violence";
• State the organization’s position on weapons and its requirement that all threats/acts of violence be reported;
• State that all reported incidents will be investigated;
• State that there is "zero tolerance" for incidents and that disciplinary response could involve counseling, warning, suspension or termination; and
• State the organization's commitment to maintaining a safe and secure work environment.

Once the organization’s policy is developed, include it in the Procedures Manual. This manual is the employer’s blueprint for its workplace violence initiative. It should contain the workplace violence policy and all methods and procedures for responding to incidents. Also include information on the Violence Vulnerability Audit; the communication plan; outlines of manager, supervisor, employee training; and a plan for evaluating the effectiveness of the workplace violence initiative. The Procedures Manual is usually given to all members of the Violence Prevention Team.

D.

Communicate Policy And Procedures

Even the best developed plans and procedures will not work if they are not effectively communicated. The success of any workplace violence prevention and intervention plan depends on several types of communication:

• The workplace violence policy must be communicated to every employee in the organization from upper management to line employees;
• Information on the types of workplace violence, the profiles and warning signs must be communicated to all employees at all levels of the organization; and
• Every organization member needs to know how and to whom a threat or act of violence is to be reported.

E.

Training

Research has shown most serious acts of workplace violence are preceded by warning signs. Rarely will a worker engage in seriously destructive behavior (homicide, suicide, sabotage, arson, etc.) without first exhibiting lower levels of violent behaviors (verbal threats, fist fights, disobeying employer policies, minor thefts, suicidal gestures, verbal/sexual harassment, impaired judgment, etc.).

A comprehensive workplace violence prevention and intervention program should, therefore, contain a strong training component that includes:

• How to recognize the warning signs;
• How to respond to the warning signs; and
• How to prevent the conduct presaged by the warning signs from ever occurring.

A comprehensive prevention and intervention training program provides different, increasingly detailed, training for employees, managers and supervisors, and Workplace Violence Prevention Team members.

Train employees to recognize warning signs and behaviors associated with workplace violence, what to do once they recognize the signs and how to avoid escalating a co-worker into potential violence.

In addition to the training received by employees, managers and supervisors should also receive training on how to provide intervention or seek assistance for employees before problems escalate. Since intervention often requires a problem-solving approach, managers and supervisors should learn to use this technique effectively. In addition, they should learn safe and appropriate responses to threatening situations.

Finally, the Workplace Violence Prevention Team receives the most comprehensive training. In addition to the elements of both employee and manager/supervisor training, Team Member training also includes the following:

• Administering, communicating and monitoring the Workplace Violence Prevention and Intervention Program;
• Conducting and interpreting the Vulnerability Assessment;
• Constructing the organization’s Workplace Violence Prevention Policy;
• Developing the procedures for responding to incidents involving imminent danger and those not involving imminent danger;
• Establishing procedures to manage difficult employees;
• Establishing procedures to terminate difficult employees;
• Developing lessons with internal and external resource providers;
• Conducting effective investigations;
• Conducting threat assessments;
• Understanding legal ramifications of threat assessment results; and
• Assigning the specific duties of each Team member.

Once trained, each Team member should have a greater understanding of the problems associated with workplace violence. Each should be better able to identify potentially violent individuals, know how to respond appropriately to threats and acts of violence, and be able to serve as a resource on workplace violence to all members of the organization.

V.

THE LEGAL IMPLICATIONS OF PREVENTING AND RESPONDING TO WORKPLACE VIOLENCE

While everyone agrees that workplace violence is an evil that should be eliminated, the law is almost schizophrenic in the way it addresses workplace violence. This damned if you do, damned if you don’t attitude of the law — not only must you protect those potentially exposed to workplace violence, you must do so in a manner that respects the rights of the violent employee — can make it difficult for employers to maneuver.

With proper understanding, however, this minefield can be crossed. Employers need to keep the following concepts in mind:

A.

Respondeat Superior Doctrine

Under the doctrine of respondeat superior, employers have been found liable for injuries suffered by third parties that were caused by their employees acting within the scope of their employment. Most violent conduct by employees falls outside the scope of employment. Thus, in the past, employers have avoided vicarious liability for these acts. But now employers may not entirely avoid liability if workplace violence can be traced to their own direct negligence.

B.

Negligent Hiring

Under the tort of negligent hiring, employers have been held liable for failing to provide a reasonably safe workplace because they hired an employee who turned dangerous or violent. Negligent hiring is placing a person with known violent propensities in a job in which it is foreseeable that the person might pose a threat of injury to others. This theory goes beyond "known" propensities to include propensities that should have been discovered by reasonable investigation. Liability is based on the adequacy of the employer’s pre-employment investigation into the employee’s background, on the type of responsibilities associated with a particular job, and on the severity of the risk posed to by an incompetent or unfit employee.

California has long recognized that an employer may be liable for negligence in hiring or retaining an incompetent or unfit employee who harms a third person. In Underwriters Ins. Co. v. Purdie, 145 Cal. App. 3d 57, 69 (1983), where an employee of a liquor store shot a delivery person, the court noted that an employer is liable for injuries caused by an employee’s vicious propensity if an employer, without exercising due care in selection, employs a vicious person to do a job which brings the person in contact with others. In this case, the employer knew about the employee’s "vicious disposition."

Plaintiffs bringing these claims must show that the employee who caused the injury was unfit for hire or was fit only if properly supervised. Employers have a duty of care to prevent injury to others whenever there is a foreseeable risk of injury. Foreseeable risk defines the scope of this duty. Consequently, an employer owes a duty of care to anyone who the employer reasonably foresees could be harmed by an unfit employee. The greater an employee’s contact with the public, the higher the degree of care that employers must exercise in staffing a position.

In McKisnie v. Rainbow International Carpet Dyeing & Cleaning Co., a Florida jury ordered a carpet cleaning franchise and its Texas-based franchiser to pay a $1 million negligent-hiring judgment to the parents of two women students murdered by an employee who had been previously arrested on weapons, drug, and violence charges. The employee had taken the carpet-cleaning job a week after being fired by a previous employer because of his arrest. He also had lied on his job application about why he left previous jobs. The jury found that the local owner of the franchise and the out-of-state franchiser were liable in the deaths of the young women for failing to be more diligent in checking with the employee’s previous employers and investigating his criminal record.

Negligent-hiring liability is no longer limited to violent acts committed within the scope of employment. Employers can be held liable for acts committed both inside and outside of the scope of employment. Employers can also be held liable for acts of former employees, and these acts do not have to be committed on company premises. See Yunker v. Honeywell, Inc., 496 N.W.2d 419 (Minn. 1993), discussed below.

C.

Negligent Failure to Warn

Employers also worry about whether they should warn employees about co-workers’ violent tendencies. The allegedly violent co-worker could sue the employer for defamation. Defamation occurs when a false, unprivileged statement is communicated to another individual and damages someone’s reputation. The employer may be protected from defamation if his warning was privileged. A qualified privilege protects a statement if made with a good-faith belief in the statement’s truth, if the statement serves a legitimate business interest, and if it was communicated only to those individuals with the need to know of the risk. Thus, when the employer believes in good faith that an employee has engaged in violent behavior and the employer warns co-workers and/or supervisors in order to protect them, the employer’s warning should be protected even if the employee is later found not to have violent tendencies.

However, consider the alternative — remaining silent. Employers have been found liable for failing to warn employees or supervisors of known or suspected dangerous propensities of other employees. The stronger the connection between the information that is known or available to the employer and the harm that is ultimately suffered, the greater the likelihood that the employer will be found liable for negligence. The employer should conduct a prompt investigation of rumors or allegations of violence before warning other employees.

D.

Privacy Issues

An employer must also be concerned about applicant and employee privacy rights. A person’s privacy rights arise from federal and state constitutions. In addition to a claim for violating the constitutional right to privacy, an individual can also file a tort claim for invasion of privacy. There are several tort theories under which an individual can assert a claim for invasion of privacy, including intentional intrusion into a person’s solitude or private affairs, public disclosure of private facts, and presenting a person in a false light to the public. However, despite these possible claims, an employer has a qualified privilege to investigate and address issues that are of legitimate concern to the employer. This would include the safety of employees and others at the workplace. So long as the employer’s

investigation is justified by a legitimate concern and is undertaken in good faith, an employer’s investigation into a person’s potential or alleged violent tendencies should not result in liability for invasion of privacy.

E.

Disability Discrimination Issues

Further complicating an employer’s legal obligations are the employer’s obligations under the American with Disabilities Act (ADA)¹ and the California Fair Employment and Housing Act (FEHA).² These laws prohibit employers from discriminating against qualified individuals with a disability when hiring or making employment decisions. A qualified individual has a physical or mental impairment that substantially limits one or more of his major life activities. Employers are also required to make reasonable accommodations for disabled applicants and employees under the ADA and FEHA.

The ADA and the FEHA limit pre-hire questions and greatly circumscribe the screening techniques which employers might otherwise find advisable in order to identify potentially violent persons. Employers will encounter legal issues both when conducting pre-employment inquiries or investigations of applicants and when addressing issues of negligent supervision and retention. Additional legal issues may surface if a disabled person contends that the conduct for which he was disciplined or terminated was caused by a disability. The legal issues surrounding the ADA and the FEHA are complex. Both qualification standards and job-related physical and mental requirements for a position are allowed, so long as the employer can establish that those standards and requirements are necessary and substantially related to an employee’s ability to perform the essential functions of the job. Tests, both written and oral, must be shown to be job-related unless the employer can show that no better job screening procedures are available. Due to the prevailing interests, employers should only use tests if they are job-related and a valid predicator of job performance.

F.

Pre-Employment Screening

Employment applications and interviews are a simple method for evaluating an applicant’s potential for violence. Employers should take the time to thoroughly pre-screen job applicants. Thorough pre-screening involves verifying the truth of all answers on the application, carefully checking all references listed by the applicant, and investigating any past criminal convictions.

1. References

Employers should carefully check references from former employers and ask former employers if the applicant has been involved in workplace confrontations. Responses should be carefully documented.

Since an employer may be liable for "negligent hiring" if it fails to check an applicant’s references, employers should have applicants sign an authorization allowing the employer to check all references. This authorization will help protect an employer from a privacy invasion claim by the applicant. It will also be easier to gain information from former employers if they are aware that the ex-employee has authorized disclosure. However, this type of release would not protect an employer against claims involving inquiries into protected information, such as the applicant’s medical history.

2. Criminal conviction record

The more thorough the investigation, the less likely an employer could be faced with a violent employee. Employers can inquire about convictions but not arrests. It is discriminatory to inquire about an applicant’s arrest record — either the number of or kinds of arrests.³ California employers are also not allowed to inquire about convictions more than two years old for the possession or sale of marijuana. An employer may inquire about an applicant’s criminal convictions record — questions about the number and kinds of convictions for criminal offenses are allowed — so long as the inquiry is accompanied by a statement that a conviction will not necessarily disqualify the applicant for employment.⁴ Employers are not prohibited from asking the question: "Have you ever committed a crime?"

3. Psychological testing

An increasing number of employers are using psychological inventories or "honesty tests" to screen potential employees. However, these tests are not known to be effective in screening out potentially violent applicants. Employers should consult with counsel prior to

using screening tests, as they have been criticized as unfairly weeding out greater numbers of minorities, women and other protected classes and violating employees’ privacy rights.

For example, Target Stores recently paid a $2 million settlement to 2,500 job applicants for security officer positions. These applicants were required to answer 704 true/false questions, many of which related to the applicants’ religious beliefs and sexual orientation. The test given was a combination of the Minnesota Multiphase Personality Inventory (MMPI) and the California Psychological Inventory (CPI). The MMPI and CPI are routinely used to screen out emotionally unfit applicants for public safety positions such as police officers, pilots, traffic controllers, and nuclear power plant operators. Target Stores had argued that this test was necessary to screen out applicants who were emotionally unstable and may have violent tendencies. Soroka v. Dayton Hudson Corp., 18 Cal. App. 4^th 1200 (1991) (Cal. Ct. App.), review dismissed, 24 Cal. Rptr. 2d 587 (1993) (case settled prior to California Supreme Court review).

An employer may give psychological examinations to applicants so long as the particular examination is not "medical." Psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment such as those listed in the American Psychiatric Association’s most recent Diagnostic and Statistical Manual of Mental Disorders (DSM).⁵ For example, an employer may give an examination designed and used to measure an applicant’s honesty, tastes, and habits. This test, as used by the employer, would not be considered a medical examination.

After offering a job to an applicant, an employer may ask disability-related questions and perform medical examinations. The job offer may also be conditioned on the results of post-offer disability-related questions or medical examinations.⁶ At the post-offer stage, an employer may ask about a person’s illnesses, diseases, or impairments, and general physical and mental health. If an employer asks post-offer disability-related questions or requires post-offer medical examinations, it must make sure that (1) all entering employees in the same job category are subjected to the inquiry or examination, regardless of disability, and

(2) the medical information obtained is kept confidential.⁷ Disability-related questions and medical examinations at the post-offer stage do not have to be job-related. But, if the person is screened out because of a disability, the employer must be able to show that the exclusionary criterion is job-related and consistent with business necessity.

G.

Post-Termination Legal Issues

Employers are justifiably concerned about the potential liabilities for disclosing information about former employees. Generally, employers are under no duty to reveal information about current or former employees and are advised to give out only the person’s "name, rank, and serial number." Acceptable information includes confirmation of the employee’s dates of employment, the employee’s title, and if the employee consents, the employee’s last salary.

Within the limits set by the discrimination and privacy laws, California employers who give truthful and relevant information about current or former will be protected. Comments made by a former employer to a prospective employer who requests information regarding an employee are not subject to liability so long as the comments were based on "credible" information and made without malice.⁸ The dilemma for employers is having to prove that any statements made were both credible and made without any "hatred or ill will" toward the employee.⁹ Saying nothing alleviates the potential for litigation and liability.

However, if an employer does choose to give information, the information given must be complete and accurate. In a recent case, school authorities who recommended a former employee for hiring at another school were subject to liability for physical harm to a student molested by the employee at the hiring school. The school authorities were liable for negligent misrepresentation and fraud because they failed to disclose known suspected acts of sexual molestation previously committed by the employee. The lesson here is clear. If an employer decides to provide information, the employer must make a full and fair disclosure and must include any negative information that affects the recommendation. An employer who provides a positive letter of recommendation for a former employee can be liable if the recommendation fails to disclose important negative information about the employee.¹⁰

Legislation pending in numerous states would give employers immunity from civil liability for disclosing negative information about current or former employees.¹¹ These statutes would provide that an employer, agent, or authorized employee who, upon request by a prospective employer or current or former employee, provides truthful written or verbal information about a current or former employee’s job performance is presumed to be acting in good faith and is immune from civil liability for the disclosure and its consequences.

VI.

Intervention: Response To Threats/Incidents

Every organization faced with the possibility of workplace violence should establish a set of procedures for dealing with threats and acts of violence. In general, there are two major categories of threats and acts: those that involve imminent injury and those that do not.

Threats or actions not involving imminent injury generally refer to the types of behaviors identified above as Level One and Level Two. However, if intervention does not take place, they could ultimately result in such physical injury. In dealing with Level One and Level Two types of behaviors, it is important to have a set of procedures in place. These procedures should be available and known by all who are likely to participate in the intervention process.

In responding to incidents that do not involve imminent injury, take the following steps:

• Whenever a Level One or Level Two behavior is reported, document the threat or act. Once the behavioral information has been received from the reporting party and the documentation is complete, take the next step.
• Notify any victim of either Level One or Level Two behavior that an investigation is underway, that the company is taking steps to deal with the incident, and that he or she be notified of these steps where possible. Remember that issues of confidentiality and invasion of privacy must be considered when notifying victims. In some instances, victims will be told that an investigation is underway and efforts will be taken to resolve the problem, although all the particulars of the investigation and specific efforts may not be made known to the victim.
• Develop an incident report form and use it every time a Level One or Level Two behavior is reported. This form is a standardized way of gathering, compiling, and organizing information. Using a consistent incident report form allows you to review incidents in a systematic and comprehensive manner. The incident report form also provides documentation should some disciplinary action be needed.

Several other steps can be taken when an incident does not involve imminent injury. Whether or not one or more of these steps are taken depends on the situation. Among the responses to consider, are the following:

• The employee continues working (usually in conjunction with a warning and remedial directives);
• The employee is given a warning;
• The employee is placed on leave;
• The employee is terminated; and
• The employee is prosecuted.

If an employee is placed on temporary leave and escorted from the workplace, he could escalate his behavior and cause physical harm. Whether the leave is paid or unpaid will depend upon the organization’s policy and the elements of each specific incident. Once the perpetrator is escorted off the property, he should generally be told that an investigation is underway and that he will be notified as to his participation in the investigation and when and under what circumstances he is to return to work.

Notify security and/or outside law enforcement if a weapon or some device is present that could cause harm to others or to property. If anyone makes a threat on someone’s life, particularly if the threat involves using a gun, notify law enforcement. When the potential type of injury is not as serious, the Team Leader will decide whether or not to notify law enforcement.

Next, convene the Violence Prevention Team to consider employment options for the employee making the threat or engaging in the incident.

Whatever decision is reached about employment status and remediation, develop a response plan that directly addresses the incident. The Violence Prevention Team, particularly legal counsel, may need to review the plan. Once the plan is implemented, monitor it to determine its viability and whether any modifications are needed. A plan must be in place before any action is taken. A well thought-out plan can go a long way towards a successful intervention and may prevent behavior from escalating.

VII.

KEEPING THE VIOLENT EMPLOYEE OFF THE WORKSITE BY LEGAL MEANS: TROs AND CIVIL COMMITMENT

California has passed a number of statutes that prohibit and protect against violent behavior both inside and outside the workplace. Certain criminal statutes were intended to punish individuals who commit violent acts, such as hate crimes, stalking, and criminal trespasses.¹² Other civil statutes were designed to protect people from violent acts before they are committed or repeated. These prevention statutes permit employers and individuals who have experienced harassment to seek protection from the civil courts against any person who has made improper threats or engaged in violent acts. The judicial protection available under these statutes consists of temporary restraining orders (TROs) and permanent injunctions.

A.

Workplace Violence Restraining Orders (C.C.P. § 527.8)

The California Workplace Violence Safety Act of 1994 allows employers to obtain a restraining order against individuals who threaten, harass or stalk their employees. This law was enacted to provide additional remedies against workplace violence by allowing an employer to obtain a restraining order to protect both the workplace and the employees in that workplace from actual or threatened violence. It allows an employer to shield, not only the victim, but all employees, from a person who has committed violent acts or has threatened to do so, even if the person to be restrained is not an employee.¹³

A restraining order prohibits the perpetrator from coming within a specified distance of the victim’s home and workplace and prohibits personal and telephone contact.

To obtain a restraining order, an employer must file an affidavit that establishes the following facts: (1) the employer (2) has an employee (3) who has suffered unlawful violence or a credible threat of violence (4) that can reasonably be construed to be carried out or has been carried out at the workplace, and (5) great or irreparable harm would result to the employee. "Unlawful violence" is defined as "any assault or battery, or any stalking as prohibited in Penal Code § 646.9."¹⁴ A "credible threat of violence" is defined as "a knowing or willful statement or course of conduct which would cause a reasonable person to believe that he or she is under a threat of death or serious bodily injury, and which is intended to, and which actually causes, a person to believe that he or she is under a threat of death or serious bodily injury, and which serves no legitimate purpose.¹⁵ Thus, an employer may obtain a restraining order for a mere statement and is not required to show a course of conduct (more than one act) if the other elements are met. The restraining order cannot prohibit speech or other activities that are constitutionally protected or protected by other provisions of law.

A temporary restraining order (TRO) will remain in effect for up to 15 days, unless otherwise modified or terminated by the court. An injunction issued under this statute may last for up to three years. A hearing must be held on an injunction petition within 15 days after the petition is filed. The perpetrator may file a response that explains, excuses, justifies, or denies the alleged unlawful violence or threats of violence. The perpetrator may also file a cross-complaint. The court can consider any relevant testimony and make an independent inquiry. If the perpetrator made threats and is currently employed by the employer, the court must receive evidence concerning the employer’s decision to retain, terminate, or otherwise discipline the perpetrator. If the court finds by clear and convincing evidence that the perpetrator engaged in unlawful violence or threats within the meaning of the statute, the court must issue an injunction prohibiting further unlawful violence or threats of violence. The employer may renew the injunction by filing a new petition within three months before the injunction expires.

The statute allows individuals either to appear in court on their own behalf (pro se) or to be represented by legal counsel. Model forms can be used to seek restraining orders under C.C.P. § 527.8. An employer must personally serve the perpetrator with a copy of the petition, any temporary restraining order issued, and notice of the hearing on the petition.

The court will order the employer to deliver a copy of the restraining order, once issued, to the appropriate law enforcement agencies by the close of business on the day the order is granted. Each law enforcement agency that receives a copy must make information regarding the existence and current status of the order available to law enforcement officers responding to the scene of reported unlawful violence or a credible threat of violence.

Any person who intentionally or knowingly disobeys a restraining order granted under C.C.P. § 527.8 is subject to punishment under Penal Code § 273.6. Violation constitutes a misdemeanor that is punishable by a fine of up to $1,000, by imprisonment for up to one year, or by both. If the violation of the order results in a physical injury, the offender must be imprisoned for at least 48 hours, regardless of whether a fine or imprisonment is imposed or the sentence is suspended. A subsequent violation within seven years of a prior conviction is punishable by imprisonment for up to one year in a county jail or for a longer period in state prison. The statute also allows a firearm prohibition and penalty.¹⁶

B.

Civil Harassment Restraining Orders (C.C.P. § 527.6)

Individuals who have suffered harassment also have the right to protect their own interests. Under C.C.P. § 527.6, a person may seek a temporary restraining order and a permanent injunction prohibiting harassment. The statute defines harassment as "a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause such distress."

The person may file a petition for a permanent injunction within 15 days after the TRO petition is filed. At the hearing, the judge must receive any relevant testimony and may make an independent inquiry. If the judge finds that the perpetrator is engaging in unlawful

harassment, she will issue an injunction prohibiting the unlawful harassment. The plaintiff may renew the injunction by filing a new petition any time within three months before the injunction expires.

Either party can be represented by legal counsel or can appear pro se. Model forms can be used to seek temporary restraining orders and injunctions under C.C.P. § 527.6. The statute also provides that the prevailing party can be awarded costs and attorneys’ fees.

Any willful disobedience of a restraining order is punishable under the Penal Code. Copies of the order must be delivered to the appropriate law enforcement agencies by the close of business on the day the order is granted. Each law enforcement agency that receives a copy must make information regarding the existence and current status of the order available to law enforcement offices responding to the scene of reported harassment.

C.

Civil Commitment

California provides for involuntary psychiatric hospitalization if a person, as a result of a mental disorder, is a danger to self or others or is gravely disabled. California Welfare and Institutions Code §§ 5150-5157 establish standards for the detention of such a mentally disordered person for evaluation and treatment. The statute permits the police or a designated health care professional to take the person into custody or cause the person to be taken into custody and placed in a facility designated by the county and approved by the State Department of Mental Health for 72-hour treatment and evaluation.

The facility must require a written application stating: (1) the person’s condition and the circumstances for notifying the police or health care professional, and (2) that the officer or designated health care professional had probable cause to believe that the person is, as a result of a mental disorder, either gravely disabled or a danger to self or others.

The facility may detain the person for evaluation and treatment for a period not to exceed 72 hours. If the professional in charge of the facility determines that the person can be properly treated without being detained, the person must be provided evaluation, crisis intervention, or other inpatient or outpatient services on a voluntary basis.

The person taken into custody must be notified that she is being placed into a psychiatric unit because of a mental disorder that may cause her to harm herself or others. Notification must include the facts relied upon to allege that she is dangerous.

Footnotes

1. 42 U.S.C. section§ 12101 et seq.