Employer Liability for Workplace Violence

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1 Employer Liability for Workplace Violence I. Employer Liability under OSHA/MOSHA a. Employers must maintain a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm. This requirement is known as the general duty clause. b. Though OSHA and MOSHA do not detail specific standards for maintaining a safe workplace, OSHA has issued guidelines, available on its website, and recommends employers adopt a violence prevention program concerning: i. Management commitment, an employee involvement; ii. Worksite analysis; iii. Hazard prevention and control; iv. Safety and health training; and v. Evaluation. II. Vicarious and Independent Liability for Employee Conduct a. Under respondeat superior, an employer can be held liable for the acts of his employees arising in the scope of their employment, regardless of whether the acts of the employee were negligent or intentional. However, violent conduct usually falls outside of the scope of employment and employers avoid liability for employee violent acts under this act, but may be able to recover due to the employer s negligence or failure to act, rather than the offending employee s actions. Acts of negligence in the 1

2 workplace causing injury to any employee are, however, broadly and exclusively covered by workers compensation laws. i. Negligent Hiring and Retention 1. Maryland acknowledges a cause of action against an employer for negligent hiring or retaining of an employee who is incompetent or unfit to perform the assigned duties and who consequently injures a third person whether coworker or member of the public. 2. As a general rule employers are not legally obligated to complete extensive background checks and look into criminal records of an applicant. 3. Even when an employer hires an applicant with a known criminal background, this fact alone does not constitute a negligent hiring. Instead, the circumstances surrounding the particular employment and applicant weighs in determining whether the failure to obtain a criminal history record constitutes a breach of the duty of care. 4. For example, in Evans v. Morsell, a bartender, with a criminal record for assault, maliciously shot and wounded a customer of the bar. The owner of the establishment did not make any inquiries about the existence of such a record upon hire, but did ask the previous owner whether the bartender was fit for duty and he was informed that the employee was a good bartender. The injured customer sued, claiming that the owner was negligent in failing to further investigate the employee s criminal record. However, the court found that the employer had a reasonable basis for believing that the bartender was a good worker and fit for duty, and held that the owner had 2

3 no independent obligation to inquire about his criminal convictions. 5. In Kramer v. Housing Opportunities Comm n, an individual applied for a position of building inspector in an apartment building, in which he would have access to the tenants and their apartments. The applicant did not complete his entire application, such as whether he had been previously fired. The employer did not verify the application or contact any previous employers. Consequently, the employer did not know that the applicant had been convicted of robbery and assault, and, that at the time of his application, he was under indictment for rape. Subsequent to his hiring, the employee gained entrance into an apartment where he assaulted and raped a tenant. The tenant brought suit against the employer for negligent hiring. Ultimately the court held that evidence that the employer could have accessed the employee s criminal records was admissible to determine whether the employer acted reasonable under the circumstances by not checking. 6. Finally, in Henley v. Prince George s County, an applicant with an extensive criminal background, including a murder conviction, was hired as a carpentry instructor at a job skills training center. The school s managers were aware of his extensive criminal background upon hire. The employee was assigned to nighttime security duties, in response to repeated acts of vandalism at the training center. Prior to assuming these duties, the employee told a coworker that if he caught any vandal on the property he would sodomize and kill the perpetrator. This was reported to management. However, his security duties were not reassigned. Several days later, the employee sodomized and stabbed to death a 12-year-old boy who ventured onto 3

4 the property. In discussing whether the selection of its employee for security duties was the proximate cause of the boy s death, the Court of Appeals focused on the issue of foreseeability. The court opined that it was a permissible conclusion that a suspected vandal would be within the class of persons subjected to an increased risk of harm by the negligent assignment of security duties to the employee. ii. Common Law Duty to Provide a Safe Workplace 1. An employer may face liability for negligence resulting from its failure to (1) provide a safe workplace for its employees, (2) warn employees about the latent dangers, and (3) promulgate and enforce rules governing employee conduct. 2. An employer also may be liable for premises liability as the result of harm to an employee or a third person who was considered an invitee on the employer s property. The employer must use reasonable care to see that those portions of the property which an invitee may be expected to use are safe, including taking reasonable measures to protect against criminal activities if there is notice that such activities have occurred. III. Sexual Harassment and Common Law Torts a. Aggressive or violent behavior in the workplace could also expose an employer to claims of discrimination from other employees or third persons when the motivation behind the conduct is racial, sexual or ethnic. From these actions arise other actionable torts, such as emotional distress, trespass, battery and invasion of privacy. 4

5 b. Intentional infliction of emotional distress is a common tort action brought, but carries a high burden for any plaintiff. i. The Maryland Court of Appeals has emphasized that the tort of IIED should be used sparingly and only to remedy conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Kentucky Fried Chicken Nat l Mgmt. Co. v. Weatherby, 326 Md. 663, 670 [7 IER Cases 865] (1992) (quoting Restatement (Second) of Torts 46 cmt. D (1965)). ii. However, see for example, in Posey v. Calvert County Board of Education, 20 1ER Cases, 50 (D. Md. 2003), the plaintiff s IIED claim was based on an incident where the defendant entered the plaintiff s home, flung open the shower curtain and acted as though he had a gun. After this incident the man continued to harass the plaintiff. The court held this action was indeed intolerable behavior and rose to a level that satisfied intentional infliction of emotional distress. 5