Can an employer determine who may commit an act of workplace violence prior to the incident occurring?
Most often, that answer is YES!
Are employers liable for knowing a specific harm might occur?
Increasingly, that answer is YES!
The significant escalation of drug use, violence, threats, and behavioral concerns in the workplace is reflective of what is being experienced at all levels in our society. The overwhelming majority of workplace-related incidents, including mass shootings, are detectable and preventable. An FBI study on pre-attack behaviors indicated, “On average, each active shooter displayed 4 to 5 concerning behaviors over time that were observable to others around the shooter. The most frequently occurring concerning behaviors were related to the active shooter’s mental health, problematic interpersonal interactions, and leakage of violent intent.” Furthermore, “We found evidence that 62% (n = 39) of the active shooters had a history of acting in an abusive, harassing, or oppressive way (e.g., excessive bullying, workplace intimidation); 16% (n = 10) had engaged in intimate partner violence; and 11% (n = 7) had engaged in stalking-related conduct.” There is often an identifiable grievance, “In those cases where the active shooter’s primary grievance could be identified, the most common grievances were related to an adverse interpersonal or employment action against the shooter (49%). https://www.fbi.gov/file-repository/pre-attack-behaviors-of-active-shooters-in-us-2000-2013.pdf/view
Employers are often fully aware of the person who causes violence in the workplace and many times, they have already taken action against that employee on a previous occasion.
Courts have determined that liability stemming from the lack of due diligence on the part of an employer is fundamentally linked to negligence as spelled out by the 2020 American Bar Association article, “Liability for Mass Shootings: Are we at a Turning Point?” https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2019-20/winter/liability-mass-shootings-are-we-a-turning-point/
The overwhelming indication is that employees who have a history of violence and drug use, who are known to have behavioral problems in the workplace and/or outside the workplace, and who have already engaged in problematic workplace behavior are the responsibility of employers. These employees pose a greater probability of specific harm to others which is FORESEEABLE.
FORESEEABILITY (when a reasonable person in a given situation should know that specific harm might occur) is determined by courts as a precondition in a finding of negligent hiring and negligent retention. The frequency and amount awarded from negligent hiring and negligent retention lawsuits stemming from workplace violence incidents are increasing:
Ø 9/23/21 Kroger Shooting - Kroger Shooting $10 Million Negligence Lawsuit
o NEGLIGENCE
Ø 10/01/17 MGM, Mandalay Bay Shooting - MGM Shooting $751 Million Negligence Judgement
o NEGLIGENCE
Ø 05/24/22 Uvalde School Shooting - Uvalde School Shooting $27 Billion Negligence Lawsuit
o NEGLIGENCE
Ø 11/22/22 – Walmart Shooting - 2nd $50 Million Lawsuit against Walmart filed
o NEGLIGENCE
Ø December 2019 Killing by Spectrum Employee - Spectrum ordered to pay $1.1 Billion to family
o NEGLIGENCE with Countless red flags – removed employee screening program in 2016 – hired Holden w/o verifying his employment history – lied on the application.
The NOBLE GROUP is committed to assisting employers in mitigating FORESEEABLE RISK through:
Ø Rapid Drug Testing Products – reliable, immediate results
Ø Drug Testing Program and Policy Management – Lab Confirmations & Medical Review
Ø Comprehensive Background Checks (not a limited review of online state court records)
Ø Post-Hire Monitoring
Ø Vulnerability Assessments and Target Hardening Recommendations
Ø Workplace Violence/Active Assailant Training and Drills
Ø Response Protocol, Critical Incident Management, Threat Assessment Training, and Policy Review
It is evident that employers are being held responsible for workplace violence incidents and a failure to protect employees. The Noble Group offers cost-effective and common-sense steps to establish due diligence and more importantly, significantly enhance workplace safety for all employees.
The NOBLE GROUP assists businesses of all sizes in all industries and welcomes the opportunity to bring true SAFETY into your workplace!
Contact:
Daniel M. Hanlon
Director of Training
National Account Development
414-207-0441
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