Five Ways an Employer Can Be Liable for Workplace Violence

Date First Published on SafetySmart Compliance: February 21st, 2012
Topics: Workplace Violence |

If workers’ safety isn’t a compelling enough reason, you should take steps to prevent workplace violence because the law requires you to. Of course, it’s one thing to assert this and another to prove it. In case somebody asks you “what law says an employer has to protect workers from workplace violence,” here’s how you can answer.

1. (a)    OSHA

OSHA doesn’t have a standard for workplace violence the way it does for other 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” and it’s designed that employers deal with all hazards they know or should know about—even the ones that don’t have a specific OSHA standard.

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.

1. (b)    State OSHA Laws

Preventing workplace violence is also an obligation in the roughly 27 jurisdictions that have their own OSHA laws, including California, New Mexico, Maine, North Carolina, Oregon and Washington:

  • Many state OSHAs, like Oregon, North and South Carolina and Maine, follow the federal approach and rely on their own version of the general duty clause to hold employers responsible for workplace violence;
  • Unlike federal OSHA, Cal-OSHA does include a specific workplace security regulation; and
  • Many states, including states like Florida that follow federal OSHA, have additional laws mandating violence protection for different kinds of operations or groups, e.g., late night convenience stores or workers who work alone.

2.    Negligence

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 4 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.

Workers 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 workers give up their right to sue their employers for negligence.

However, the so called workers’ comp bar doesn’t apply to third parties injured by a worker. Thus, acts of violence by workers at work that injure visitors, members of the public and others could lead to negligence lawsuits against the employer. The victim could make 3 kinds of negligence claims:

General Negligence: The employer was negligent in not preventing the attack;

Negligent Hiring: The employer was negligent in hiring the attacker in the first place—this is the kind of claim that a nursing home patient might make if he were attacked by a nurse who had a criminal background that the nursing home either ignored or failed to uncover before hiring him; and/or

Negligent Retention: The employer knew the worker was prone to violence and was negligent to retain him as an employee.

3. Infliction of Mental Distress

Like negligence, infliction of mental distress is a tort, i.e., a common law wrong giving the victim a right to sue in civil court for money damages. Victims of workplace violence and harassment, including workers and non-workers, may be able to sue their employers for the intentional infliction of mental distress. To win such a case, the person must show that:

  • The conduct was “outrageous” and went beyond mere assertiveness or aggressiveness;
  • The individual attacking or harassing the worker deliberately tried to hurt the victim; and
  • The victim visibly suffered as a result of this conduct.

These cases are hard for workers to prove but it can be done:

4.    Employment Discrimination

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 against or harassment of a worker could thus be deemed a form of discrimination to the extent it’s based on a protected characteristic. For example, EEOC laws bar discrimination on the basis of religion but not sexual orientation. So bullying a worker because he’s Muslim would be a potential violation, while bullying a worker because he’s gay wouldn’t be.

5.    Breach of Contract

Some courts believe that employers have an implied contract to treat workers 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.