Tag Archives: Workplace Violence Prevention Act

Responding to Violence in the Workplace – A “Catch 22” for Employers

Contributed by Michael Wong, August 10, 2017

Workplace investigation

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

  1. Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
  2. Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
  3. Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
  4. Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
  5. Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

Attention Illinois Employers: Senate Approves Amendments to Workplace Violence Prevention Act

Contributed by Noah A. Frank

On April 9, 2014, the Illinois Senate unanimously passed amendments to the Illinois Violence Prevention Act (“VPA”), sending the bill to the House for consideration once the General Assembly reconvenes on April 29, 2014.  The VPA, effective only since January 1, 2014, is meant to enable employers to protect its workforce, customers, guests and property by limiting access by potentially violent individuals (“PVI”).  Under the Senate-approved amendments, an employer would obtain, through any state circuit court, a workplace restraining order to prohibit further threatened or actual violence by a PVI.

To obtain the restraining order, the employer would need to file an affidavit that shows (i) an actual or credible threat of violence by the PVI towards an employee to be carried out at the workplace, and (ii) that the employer (or its employees) has or will suffer irreparable harm at the workplace.  Where the employer seeks a restraining order as a result of an employee being a victim of domestic violence, the employer must take additional steps of notifying the employee in writing of its intent to seek the order, and communicate directly and “verbally” with the employee to address other safety or well-being concerns that may result or whether the restraining order would interfere with the employee’s own legal actions.

The restraining order may prohibit the PVI’s presence in the workplace, and order the PVI to pay the employer for losses including property repair or replacement, attorneys’ fees, and court costs.  Under the VPA amendments, there is no right to a trial by jury in any proceeding to obtain, modify, vacate, or extend the restraining order.  An emergency order would be effective for 14 to 21 days and other restraining orders would be effective for a fixed period of time not to exceed a year.

However, the amendments make clear that the restraining order may not be used to restrain workers or organizations from monitoring wage and safety laws, free speech or assembly, or rights under the National Labor Relations Act including lawful picketing.  The amendment also reinforces an employer’s responsibilities under the Victims’ Employment Security and Safety Act (“VESSA”).

Impact on the Workforce

The VPA provides Illinois businesses with the ability to seek judicial protection from violent acts that could result in physical or emotional harm to employees, customers, and guests, and also to avoid damage to property.  This important tool may be used to restrain an employee’s significant other, a disgruntled former employee, or an unruly customer.

Unfortunately, the amendments fail to curtail a labor union’s ability to intimidate or threaten workers who wish to remain union-free or customers who wish to conduct business free of harassment.   Illinois has joined a growing list of states that are tackling the growing need to maintain a safe, non-violent workplace.

Protecting Your Workplace Just Got a Little Easier…

Contributed by Julie Proscia

On August 16th, Gov. Quinn signed the Workplace Violence Prevention Act (WVPA or act). The WVPA is effective on January 1, 2014. The legislation applies to employers with five or more employees, and covers the prevention of violence, stalking and harassment. The WVPA allows employers to seek a court order of protection if the business or its employees are threatened by an individual, generally a disgruntled employee.

At least once a week, we counsel and advise employers about the disgruntled employee. It is always a difficult situation; do we keep an abusive employee or let them go and face their wrath? Employers are fearful that if they terminate a disgruntled employee, the individual will return to the business and harm both the people and property associated with the business. Now we work with our clients and local law enforcement agencies to effectuate the smoothest of separations, and try and prevent the individual from entering the property through anti-trespassing measures. We have also successfully fought in the courts for orders of protection. Unfortunately, until this act, there was no cogent statewide legislation for orders of protections that specifically addressed these non-domestic workplace scenarios. This act is meant to resolve this deficiency. As of January 1, 2014, employers who face a credible threat of violence may seek an order of protection to prevent and preclude the individual from entering the workplace and contacting their employee(s).

For an employer to obtain an order of protection under the act, they must show through an affidavit, to the satisfaction of a judge, that there is sufficient evidence that an employee has suffered a threat or there is a credible potential threat that could be faced by the workplace. A credible threat of violence is defined as a statement or course of conduct that does not serve a legitimate purpose and that causes a reasonable person to fear for the person’s safety or for the safety of the person’s immediate family.

This act does not supplant any current means or methods of seeking protection but gives employers both a shield and a sword to try and prevent workplace violence. In an era where employers are constantly subjected to additional legislation that makes it harder to do business, this is legislation that makes it easier. Put this one in the win column.