© 2013 Kilpatrick TownsendApril 25, 2013

Armed & Dangerous:Protecting your employees from violence

Yendelela Neely Anderson, Kilpatrick Townsend & Stockton

Celeste Bradley, Blue Cross/Blue Shield Tennessee

Waverly D. Crenshaw, Jr., Waller Lansden Dortch & Davis

Sheldon W. Snipe, AT&T Services, Inc.

Maria A. Audero, Paul Hastings LLP

THE FACTSArmed & Dangerous

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• 2 million people are victims of workplace violence each year

• In 2011, homicideaccounted for 17% of all workplacefatalities

• Homicide is the mostcommon cause of workplace fatality in women

• Relatives account for most workplace violence against women

• Robbers account for most workplace violence against men3

LEGAL LANDSCAPEArmed & Dangerous

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The majority of states have no legislature regarding rights with regards to guns in/around the workplace

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16 states (and counting) have enacted laws expressly prohibiting employers from preventing employees from keeping their guns in their locked car in the parking lot

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6 states have enacted laws requiring employers to post signs regarding any gun restrictions

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It is unlawful in 5 states to ask employees or job applicants whether they possess a gun and/or to search employees cars for guns

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14 states (and counting) limit the liability for employers who cannot prohibit employees from keeping guns in their locked cars in the parking lot

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• Occupational Safety and Health Act (“OSHA”)– No specific OSHA standard for violence – General Duty Clause (OSH Act Section 5(a)(1))

• All employers have a general duty to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm

– OSHA has issued voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence in at-risk industries• For-hire drivers, late-night retail establishments,

healthcare and social workers • Failure to adhere to the guidelines is not an automatic

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• Ramsey Winch v. Henry, 555 F.3d 1199 (10th Cir. 2009)– Challenge to Oklahoma bring your gun to work law– Reversed trial court ruling that gun-related workplace

violence was a “recognized hazard” under the general duty clause, and, therefore, an employer that allows firearms in the company parking lot may violate the OSH Act.

– Noted “an employee's general fear that he or she may be subject to violent attacks is not enough to require

abatement of a hazard under

the general duty clause”

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TENSIONS RISING Armed & Dangerous

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• Federal Limits:– “Enforcement Guidance on the Consideration of Arrest

and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” issued April 25, 2012

– August 2012: EEOC announced focus on discrimination cases stemming from background checks

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• State Limits:– “Ban-the-box” legislation: prohibits employers from asking

about criminal convictions on an initial employment application• Several states and cities have such laws

– Some states have deemed it unlawful under some circumstances to refuse to hire an applicant or take adverse action because of a criminal conviction

– Some states permit inquiry into criminal background but limit the scope, for example:• Prohibit questions about arrests that did not result in convictions• Limited ability to ask about “old” convictions• Limited ability to ask about misdemeanors or certain first

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• The federal and state limits on employee background searches can be fertile ground for negligent hiring claims – Negligent hiring claims arise when a person suffers

harm at the hands of an employee and blames the employer’s failure to conduct a reasonable investigation of the applicant’s background

– Typical elements of claim:• Employment relationship (consider independent

contractors; subcontractors relationships)• Employee is dangerous, unfit or incompetent• Employer should have known or did in fact know• Employee’s dangerous propensities were cause of injury

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14 states (and counting) limit the liability for employers who cannot prohibit employees from keeping guns in their locked cars in the parking lot

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5 states limit the liability for employers regarding decisions on whether to seek temporary restraining orders on behalf of employees

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• Courts generally ask the following questions regarding negligent hiring: – Did the employer know or should have known of an

employee’s potential risk? – Could the risk have been discovered by a reasonable

investigation?• What’s at stake:

– Raegan et al v. Dunaway Timber Company (2011): Negligent hiring case where Arkansas jury awarded $7 million in damages to a the family of an Arkansas truck driver killed in an accident.

– Linhart v. Heyl Logistics, LLC, et al. (2012): Oregon jury awards $5.3 million in damages on a negligent hiring case against Washington Transportation for failing to conduct background check and verifying driving record.

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Courts ask the following questions regarding negligent hiring:• Did the employer know or should have known of an

employee’s potential risk? • Could the risk have been discovered by a reasonable

investigation?

2011 – Arkansas jury awarded $7 million in damages to a the family of an Arkansas truck driver killed in an accident. Claim of negligent hiring was brought against a timber company and its driver. Raegan et al v. Dunaway Timber Company et al 3:10-CV-03016

2012- Oregon jury awards $5.3 million in damages on a negligent hiring case against Washington Transportation for failing to conduct background check and verifying driving record. Linhart v. Heyl Logistics, LLC, et al., Case NO. 10-03100- PA

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CRISIS MANAGEMENT AND MITIGATING VIOLENCE

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• Effective Workplace Violence Crisis Management Protocol– Step 1: Assessment

• Develop Management Team• In-House Resource• Political Dynamics

– Step 2: Coordinated Buy-In• Approach• Options

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• Effective Workplace Violence Crisis Management Protocol (continued)– Step 3: Educate and Train

• Supervisor Training (early warning signs;  de-escalate tension; prompt reporting)

• Wide Policy Coverage (Zero Tolerance; Open Communication; No Retaliation)

• Review And Enhance Security Measures• Cooperative Relationship With Law Enforcement

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– Step 4: Investigation• Timeframe• Reporting to

Management

– Step 5: Decision Points• Access• Articulate• Understand

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• Effective Workplace Violence Crisis Management Protocol (continued)

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• Plan Implementation– Communication

• Decision-maker• Stakeholder • Public

– Progress• Step by Step• Effectiveness

– Reassessment • Trends• Effectiveness• Feedback

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ATLANTA

AUGUSTA

CHARLOTTE

DENVER

DUBAI

LOS ANGELES

NEW YORK

RALEIGH

SAN DIEGO

SAN FRANCISCO    

SEATTLE

SHANGHAI

SILICON VALLEY

STOCKHOLM

TAIPEI

TOKYO

WALNUT CREEK

WASHINGTON D.C.

WINSTON-SALEM

www.kilpatricktownsend.com

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