Failure to prevent an act of violence from occurring at your workplace can result in your law firm being held liable under one or more of the following five laws:
1. U.S. OSHA
The U.S. Occupational Safety and Health Administration (OSHA) doesn’t have a specific regulation or “standard” for workplace violence the way it does for other workplace hazards like chemicals, electricity and fall risks. But what OSHA does have is a section that requires employers to keep the workplace “free from recognized hazards” that can cause death or serious injury. This obligation, which comes from Sec. 5(a)(1) of the Occupational Safety and Health Act, is called the “general duty clause.”
How do we know that the general duty clause applies to workplace violence?
Answer: Because OSHA has told us it does. As far back as 1992, OSHA issued an
Interpretation Letter stating that, in some circumstances, the risk of violence can be one of the “recognized hazards” that employers have to manage under the general duty clause.
The bottom line: OSHA can cite you for not doing enough to prevent workplace violence.
2. State OSHA laws
27 states have adopted their own state OSHA laws. Rule: State OSHA laws must be at least as stringent as federal standards. In most cases, state OSHA laws are actually stricter than federal requirements. One example: California, Washington and New York (for public employers) OSHA laws do include regulations specifically addressing workplace violence rather than rely on the general duty clause to hold employers feet to the fire. In addition, many states (including those that do follow federal OSHA) have adopted separate workplace violence laws covering different operations or groups, such as health care, late night convenience stores and employers whose employees work alone.
3. Negligence law
Not all safety laws come from statutes and regulations. Some are rooted in what’s called “common law,” or law made by judges one case at a time. Each decision serves as precedent that judges look to in deciding subsequent cases. Over time, these cases form a body of law with rules of its own.
One example of common law that everybody is familiar is called negligence. To win a negligence lawsuit and collect money damages, a victim—called a plaintiff—must prove four things:
1. The defendant owed him a duty of reasonable care;
2. The defendant didn’t meet that duty of reasonable care;
3. The plaintiff suffered an injury as a result of that breach of the duty of care; and
4. Money damages can compensate the plaintiff for the injury.
Employees who get hurt on the job generally aren’t allowed to sue their employers for negligence because of the workers’ compensation tradeoff: in exchange for automatic coverage of work-related injuries regardless of fault, injured employees give up their right to sue their employers for negligence.
But workers’ comp may not apply to your law office; and even if it does, the workers’ comp bar doesn’t apply to third parties injured by an employee or at an employer’s worksite, including as a result of violence. Third party victims of violence could make three kinds of negligence claims against your law firm:
1. General negligence: You were negligent in not preventing the attack;
2. Negligent hiring: You were negligent in hiring the attacker (if the assailant is one of your employees); and/or
3. Negligent retention: You were negligent to keep the violent employee who committed the attack on your payroll.
4. Employment discrimination laws
Federal civil rights laws ban employers from discriminating against employees or prospective employees on the basis of disability, family status, gender, race, religion and other personal characteristics. The obligation to prevent discrimination includes providing all employees a work environment free of harassment and abuse.
Violence or harassment directed at an employee may be deemed a form of discrimination to the extent it’s based on one of the above protected characteristic. For example, EEOC laws bar discrimination on the basis of religion but not political beliefs. So harassing an employee because he’s Muslim could be discrimination, while harassing an employee for being a Republican wouldn’t be (although it could still result in your being liable under one or more of the other workplace violence laws).
5. Contract law
Some courts believe that employers have an implied contractual duty to treat employees with respect and dignity so they can do their job. A victim of workplace violence might be able to claim that an employer failed to deliver on this promise and thus breached the employment contract.
Related reading: Employee Briefing: 6 tips for preventing workplace violence
Related reading: Workplace Violence: A 10-step prevention and liability management plan