February 9, 2015

How to Prevent Workplace Violence

Posted in Employment Law by Gene Killian |

I started our law firm with a partner 20 years ago, and here’s one valuable thing I’ve learned:  If you’re an entrepreneur, or if you have an entrepreneurial mindset, you’re going to make your share of really dumb hiring decisions. (To the point where a then-junior attorney once came into my office and said, “Gene, are you going to hire more people here? Because if you are,  I’d like to be in on the interviews.”)  Fortunately, I’ve gotten some coaching and training over the years and I think we’ve now gotten the hiring thing worked out.

Why are professionals so bad at hiring, at least when we start out?  Because if you’re an entrepreneur, you’re by definition a glass-is-half-full person. You think everyone is brimming with potential, and, whatever their skill set, they can adapt and handle any project you give them.  (Wrong.)

Take the odd case of Lucy (not her real name), a legal assistant we hired not long after we opened. I liked Lucy because when she focused, she could turn out a massive amount of work at a frenetic and unusually accurate level. (Think Jack Nicholson working on his manual typewriter in “The Shining.”)  The problems started when she told people in the office that she believed she was a witch. Then she started to believe that the atmosphere in the office was polluted with “mercury vapors,” requiring her to expel the toxic fumes by spitting in the office waste baskets. Faced with a mutiny, I fired Lucy. When I called her at home to get the address for her severance pay, she screamed:  “If you think I’m going to give you my address after the way you BEAT me...”  So I said, “fine” and started to hang up the phone.  Then she said “No, no, wait! Here’s the address!”  I guess she wasn’t THAT insane.

Lucy seemed perfectly normal when we hired her, and although she clearly had mental health issues, she wasn’t violent. But what gives me the chills when I think about these episodes is that she could have been violent - and I probably wouldn’t have realized it until it was too late.  In addition to the human cost (which is the primary concern), the financial cost can be staggering. According to Liberty Mutual, workplace violence costs employers approximately $640 million annually.  This includes workers’ compensation and medical claims, leave taken to address post-incident physical or psychological injuries, litigation costs, and the diversion of company resources. 

Let’s examine a horrific example.  Allstate Insurance Company employed a man named Paul Calden as a claims manager in Florida.  While working at Allstate, Calden made death threats to his coworkers. One day Calden brought a gun to the workplace in his briefcase. Allstate fired him. Then Allstate (to me, inexplicably) provided Calden with a neutral letter of reference, stating that he had voluntarily resigned because his position was eliminated in a restructuring. Firemen’s Fund hired Calden based in part on the neutral letter of reference. Unfortunately but not surprisingly, Calden also proved to be a problem employee at Firemen’s Fund, and Firemen’s Fund let him go. Eight months later, Calden walked into a cafeteria-style restaurant in the Firemen’s Fund building during lunch, yelled “This is what you all get for firing me,” and shot five supervisors, killing three of them.  (He later committed suicide on a golf course.)  The widows of the murder victims sued Allstate for failing to disclose Calden’s true work history. Allstate ultimately settled the case for an undisclosed sum of money.

Could anything have been done to prevent this carnage?  20/20 hindsight is a wonderful thing, but here are a few thoughts

1.  Most lawyers and HR professionals recommend that their clients provide “neutral” references for former employees, confirming only dates of employment, title, and salary.  The idea is to prevent lawsuits by the former employee for defamation or interference with prospective economic advantage, or lawsuits by the new employer for negligently providing incorrect information with respect to a problem employee. I say that all bets are off when dealing with a former employee who has exhibited violent, potentially dangerous or bizarre behavior. Could a former employee sue you if he or she loses a job opportunity due to full disclosure?  Maybe. But from a human as well as legal perspective, better to deal with a frivolous lawsuit than unthinkable consequences.  (Keep in mind that New Jersey does recognize claims for negligent hiring that causes injury to a third party.  DiCosala v. Kay, 91 N.J. 159, 173-74 (1982).)

2.  Employers are intimidated by hundreds of laws dealing with the selection of job applicants and employee rights, and many employers believe that they can’t do anything meaningful to screen job applicants.  These laws include New Jersey’s “ban the box” law, which prohibits employers from asking prospective employees about criminal records until after an initial interview.  My advice: Be aware of the applicable laws, but for goodness sake, use your common sense.  Gaps in resumes are red flags. Pay attention to them.  Call all references and listen very carefully to the answers.  Specifically ask whether there’s awareness of any criminal record or strange behavior.  You might not get responses, but it can’t hurt to ask the questions.  And always get a criminal background check done.  (Ask for consent to do so, within the parameters of any applicable “ban the box” law.)

3.  Look for the warning signs, like chronically poor work performance, conflicts with supervisors or co-workers, unfounded grievances and complaints, abuse of sick leave, and carping about being a "victim."  Any threat of violence, subtle or direct, should be taken seriously, then documented and investigated by the local police if appropriate. (Workplace murderers sometimes make their plans very clear, if anyone is paying attention.) Issue bulletins to current employees identifying ex-employees who are causing problems. 

 An ounce of prevention.

 -        Gene Killian