Employment Law Report
Addressing Workplace Violence Concerns
By: Marianna J. Michael with assistance from Kelly Zimmerer, Wyatt Summer Associate
On April 10th, 2023, an employee of Old National Bank opened fire inside his workplace in downtown Louisville. We were deeply saddened by this senseless and tragic episode, and our thoughts remain with those impacted by the sorrowful events of April 10.
This shooting unfortunately reflects a nationwide increase of violence in the workplace. Such events not only take a horrific psychological toll on employers, employees, and their families and friends but also cause financial strain through property damage, diversion of resources, productivity impediments, and increased personnel costs. While violence in the workplace is not always preventable, employers can take steps to increase employee safety and to prepare to provide employee support should an act of violence unfortunately occur.
Policies Prohibiting Violence:
Company policies may help make the workplace safer for employees. Employers can improve safety by implementing and maintaining workplace violence policies that prohibit threats or acts of violence at the workplace. The policies should be easy to read and understand. If state law allows, employers can also implement policies prohibiting weapons in the workplace. In Kentucky, private business owners may prohibit persons, including employees, from carrying concealed deadly weapons while on business premises. State law provides for certain exceptions, however. For example, employers cannot prohibit employees from keeping firearms in their private vehicles even when parked on employer property. Employers also cannot restrict the use of deadly weapons during a disaster or emergency. These laws vary by state and may include exceptions or variations for different types of business establishments or situations. Be sure to check the laws of your jurisdiction before drafting or updating your policies.
Positive Workplace Environments:
Due to the close connection between feelings of isolation, resentment, or hostility and violence, employers may be able to increase workplace safety by fostering a healthy and inclusive work environment. According to the Department of Labor, employers can create a more employee-friendly environment by
- promoting open communication between different employment levels,
- offering professional development opportunities,
- creating family-friendly policies,
- maintaining a system for employees to submit complaints and concerns,
- incorporating quality of life issues into the workday, and
- disciplining employees for improper conduct or poor performance in an impartial and consistent way.
Employers should also consider providing appropriate health insurance so employees can access healthcare in the event of a physical or mental illness.
Employers can also consider updating building features to improve safety. Establishing a lockable safe room for employees could provide physical security during an active shooter situation. Keyless door locks are both secure and convenient for employees to use. Installing keyless locks at all entryways to internal areas reduces accessibility to unwanted visitors.
Although most employers and employees part ways without violence, employee termination can trigger dangerous behaviors aimed at the workplace. Employers, while they cannot stop violent behavior of a disgruntled former employee, can update their termination process to reduce the risk of a physical altercation at the moment of firing. Employers can avoid giving advance notice of terminations, discharge employees remotely or provide a security escort if an employee is discharged in person, and prohibit discharged employees from accessing the premises. Employers should also alert security of all terminations.
Employers can also design the termination process to both reduce the pressure on the discharged employee and avoid the necessity of continued contact. At the time of termination, employers should provide information about the employee’s last paycheck, the date employer-sponsored health insurance will end, the possibility of continuing health insurance through COBRA, and the ability to access or rollover a 401(k). Employers should also provide information on any reference policies for terminated employees.
Not all acts of workplace violence are predictable. However, some acts of violence are preceded by warning signs that individuals within the company may notice or know about. Because early intervention could help prevent the ultimate act of violence, employers should encourage employees to report suspicious behavior. Employers should implement a policy making it clear that reports are confidential and will never result in retaliation. The reporting process should be expedient for situations when a timely response is necessary. It should also allow for open and honest communication.
Notice of the reporting process should also involve training on warning signs of potential violence. The Federal Bureau of Investigation has identified three major categories of warning signs: changes in behavior, changes in attitude, and demonstrations of violence. Changes in behavior could include significant changes in personal hygiene, attendance problems, or obsessions that affect concentration and productivity. Changes in attitude may involve continual blame, lowered tolerance for stress, or extreme dissatisfaction with a particular aspect of work. Demonstrations of violence include verbal abuse; threats; physical aggression, such as pounding on desks, hitting or punching walls, or shaking fists at people; and harassing or stalking another person.
Responding to Reports:
The presence of any one warning sign does not necessarily indicate a person will engage in violent behavior. In fact, the warning signs listed above may also suggest that someone is a victim of violence or is suffering from a physical or mental illness. Decisions on how to respond to warning signs are often not straightforward. Employers could consider the following actions and tailor them to the severity of the reported behavior:
- meet with the reported employee in a private place to discuss the concerns;
- discipline the reported employee according to company policies;
- discuss an Employee Assistance Program available to the employee;
- discuss mental health services available through employer-sponsored health insurance;
- recommend the employee contact a national hotline, such as the National Domestic Violence Hotline, for help finding local resources; and/or
- alert building security.
If an employee or third-party makes a threat of violence, employers should alert any employees potentially under threat, secure their own safety and the safety of others, and contact law enforcement.
Regardless of the response, employers should document the initial report, any actions taken in response, and any escalations in behavior.
Employee Active Shooter Training:
Employers can also improve workplace safety by scheduling active shooter trainings for employees. The Department of Homeland Security provides resources on how to respond when an active shooter is nearby and how to respond when law enforcement arrives. In conjunction with an active shooter training program, an employer should create or update an Emergency Action Plan.
Employer Response to an Incidence of Violence:
Employers should be prepared to offer support following an incidence of workplace violence either on the employer’s premises or at a nearby location. Employees suffering physical or mental injury may need assistance applying for short- or long-term disability. Employers should be prepared to accommodate time off through FMLA or other leave. Because employees may also need counseling services, employers could consider providing in-house mental healthcare or materials to help employees access outside mental health services. Employers may also want to consider responses to requests for ADA accommodations for mental health issues caused by the event.