Tag Archives: workplace violence

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.

Ring In The New Year With These Federal and State Employment Law Updates!

Contributed by Heather Bailey

Federal:  Attention Federal Contractor/Subcontractor Employers! In order to be in compliance with affirmative action obligations, applicable employers must start tracking those applicants and employees who are disabled and/or are qualified protected veterans, who choose to self-identify.  This also means having a written affirmative action plan with utilization goals for these classes of individuals.  For those employers who are affected, this will begin applying to all plans drafted as of March 24, 2014 and after.  It is a good idea to start meeting with your IT and HR professionals now on how such data is going to be collected and analyzed for the upcoming new plans.

CaliforniaEffective January 1, 2014, California cracks down on those employers who choose to discriminate against or threaten those employees or applicants due to an employee’s or family member’s citizenship or immigration status or involvement in protecting such rights.

Illinois:  As of January 1, 2014, employers now have the ability to seek protection orders against employees who create or threat workplace violence.  Prior to now, this protection was not available for workplace violence created by employees.  Starting June 1, 2014, employers must recognize the marital status of those employees who have entered into same-sex marriages.

Missouri:  Minimum wage = $7.50 starting January 1 and $3.75 for tipped employees (due to inflation regulations).

New Jersey:  Starting January 6, 2014, all employers with 50 or more employees must post and distribute (with a signed acknowledgment) the new NJ poster re: state and federal equal pay laws and discrimination prohibitions.  Get your latest copy here.

Concealed Carry Signage Approved by the Illinois State Police

Contributed by Michael Wong

Under Illinois’ concealed carry law, owners of private property that want to prohibit individuals from carrying concealed firearms must post the Illinois State Police approved sign.  Even if the property is listed as an area where individuals are prohibited under the law from carrying concealed firearms, the owner of the property must still post the Illinois State Police approved sign. 

The Illinois State Police have issued signage that can be used by businesses and property owners to prohibit individuals with licenses under Illinois’ concealed carry law from carrying concealed firearms on their property.  The approved sign must be clearly and conspicuously posted at the entrance of a building, premises, or real property identified by the law or the owner as a prohibited area, unless the building or premises is a private residence/home.  While the law is not clear whether the sign must be posted at every entrance to a building, to ensure compliance the business or owner of the property should post the approved sign at all entrances. 

The approved sign requires a graphic design that is 4 inches in diameter depicting a handgun in black ink with a circle around it and a diagonal slash across the firearm in red ink.  The graphic design must be on a white background with no text or markings within the one-inch area surrounding the graphic design (except for a reference to Illinois Code 430 ILCS 66/1).  The approved sign must measure 4 inches x 6 inches.  Below is an image of what the approved sign looks like. 

Concealed Carry Signage Approved by the Illinois State Police

Concealed Carry Signage Approved by the Illinois State Police

Additional information and a template of the approved sign can be found on the Illinois State Police website. (Link to PDF of Illinois State Police Approved Sign).

Even though the earliest an individual may apply for a license to carry a concealed weapon is January 5, 2014, all businesses should be considering whether they are going to allow concealed firearms in the workplace.  Regardless of the decision, employers will want to make changes to their policies and handbooks to reflect the decision.  Additionally, if the business decides to prohibit all individuals from carrying concealed firearms on the premises, it must obtain and post the approved signage.

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.

Illinois Employers May Be Able to Get Orders of Protection Soon…

Contributed by Michael Wong

In today’s day and age, workplace violence is becoming more and more of an issue for employers.  While employers have control over their employees and property, it can be difficult for them to obtain protection for their property and employees from other individuals, including disgruntled ex-employees or a violent former client/customer. 

The Illinois Legislature recently sent the Workplace Violence Act, H.B. 2590, to the Governor to review and approve.  If approved by the Governor, the Workplace Violence Act will allow an employer to seek an order of protection to prohibit further violence or threats by an individual on the employer’s premises or against its employees.  Currently, there are a few options for an employer seeking to prohibit an individual from accessing its property, including notifying the individual that they are trespassing and seeking help from law enforcement or filing a civil lawsuit against the individual for trespassing and seeking a temporary restraining order.  

However, those options do not necessarily provide the same level of protection or enforcement as an order of protection and it can take time to get a temporary restraining order.  Under the proposed Workplace Violence Act, an employer would be entitled to basically the same rights as individuals in seeking orders of protection for domestic violence.  If it is enacted, the Workplace Violence Act will exponentially simplify the process and allow an employer to get an order of protection by (1) filing an affidavit that shows reasonable proof that an employee has suffered either unlawful violence or a credible threat of violence by an individual, and (2) demonstrating that great or irreparable harm has been suffered, will be suffered, or is likely to be suffered by the employee if the order of protection is not granted. 

Furthermore, a change to the Illinois Domestic Violence Act by the recently enacted Firearm Concealed Carry Act would allow an employer, if the Workplace Violence Act is signed into law, to request that the individual subject to the order of protection be required to turnover any firearms that he or she possesses and his or her FOID card to prevent them from legally carrying or possessing a firearm. 

Simply, H.B. 2590 which sets forth the Workplace Violence Act, if signed into law by the Governor will become another tool that employers may use to protect their property and employees.

HIT THE DECK! What the Overturn of Illinois’ Ban on Concealed Carry Could Mean for Employers

Contributed by Brandon Anderson

On December 11, 2012, the U.S. Court of Appeals for the Seventh Circuit issued a decision finding Illinois’s ban prohibiting civilians from carrying concealed weapons to be unconstitutional.

Following Wisconsin’s passage of concealed carry legislation, in 2011, Illinois became the only state with an out-right ban on the carrying of concealed weapons by civilians.  Due in part to its “lone-wolf” status on the issue, there was a significant amount of speculation regarding the likelihood of constitutional challenges to the Illinois concealed carry ban, especially considering the 2010 U.S. Supreme Court’s decision in McDonald v. Chicago, which found Chicago’s handgun ban to be unconstitutional.  The speculation is, to some extent, over.

While the decision in Moore v. Lisa Madigan is a relatively entertaining read, especially for Constitutional law, Second Amendment, and even history nuts, the outcome is simplistic: Illinois’s outright ban prohibiting ordinary citizens from carrying concealed weapons, specifically handguns, outside of their personal property is unconstitutional (there are exceptions to the law: for example, law enforcement and security guards on their way to or from work, as a security guard, not as a Senator, are excepted).  While the ongoing, seemingly centuries old debate of the “true meaning” of the Second Amendment is likely going to continue into the foreseeable future, the same cannot be said for Illinois’s law—the Seventh Circuit stayed its mandate for 180 days to allow the Illinois legislature to draft a new gun law “that will impose reasonable limitations, consistent with the public safety and the Second Amendment . . . on the carrying of guns in public.”

Now what? Of course the state may appeal the decision to the U.S. Supreme Court.  However, in light of McDonald v. Chicago, the likelihood of success is debatable.  Or, the legislature could pass legislation.  Legislation presents its own intriguing issues.  Outside of the city of Chicago, there is generally support for concealed carry laws by both Republicans and Democrats. Regardless of the fact that Illinois Democrats enjoy majority status in both the House and Senate, will those outside of the Chicago city limits support a restrictive, but constitutional law? 

Regardless of the ultimate legal and legislative outcomes, Illinois employers must start giving some serious thought to their handbooks, workplace violence policies, and weapons policies (if one even exists).  Employers will continue to have an interest in, and should have the right to, restrict or regulate the possession of weapons on their premises and/or during work hours.  However, employers must be aware that states have, on occasions, limited this right.  For example, the Wisconsin law that was passed in 2011 does not allow an employer to prohibit employees from keeping weapons, such as a loaded handgun, in their vehicles, even if parked in or on the employer’s parking lot. 

Be sure to check back for an update on this issue within the next 180 days…