| Although the term "workplace violence" may conjure images of an armed disgruntled employee entering his or her current or former place of work and opening fire on supervisors or fellow employees, such incidents make up a very small percentage of all workplace violence. Much more common are harassment and intimidation, assault, robbery, and even spousal violence directed towards employees in the workplace, which contribute to over 1,000 workplace homicides per year and thousands more injuries. For cases that evolve into lawsuits, the average settlement for an incident of workplace violence is $500,000 and the average jury award is $3 million.
The Occupational Safety and Health Act (Act) requires employers to furnish its employees with a place of employment that is free from recognized hazards that cause or are likely to cause an employee's death or serious physical harm. The Act is administered and enforced by the Occupational Safety and Health Administration (OSHA); it does not provide a private right of action for a violation of the Act. However, state regulations concerning occupational health and safety may provide additional rights to employees regarding workplace safety.
Despite the lack of relief provided by the Act, employees who become victims of workplace violence may have causes of action based in common law tort. The most basic common law principle describing the legal relationship between an employer and an employee is respondeat superior, which provides that an employer is liable for the acts of an employee who is acting as the employer's agent within the scope of employment. With some exceptions, such as with employees who are responsible for security, an act of violence is likely to be found to be outside of the scope of employment, thereby absolving an employer under the theory of respondeat superior. However, there are other legal theories under which an employer might be found liable for an act of workplace violence by an employee acting outside the scope of employment.
An employer can be found liable for negligent hiring if it had known or should have known that an employee that it hired had violent tendencies. Liability can extend to the employer even if there were no obvious indications that an employee might be dangerous but the employer failed to conduct a background check that would have revealed important information about the employee. An employer might also be found liable for negligent retention when, although there are no indications in the employee's background of potential problems, an employee shows violent tendencies during his employment and the employer continues to retain the employee's services. If a threat to a workplace comes from outside of which the employer is aware, such as from the angry spouse of an employee, a stalker, or disgruntled former employee, an employer could be found liable for inadequate security if certain measures are not taken to protect employees from such an outside threat. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |