VIOLENCE IN THE WORKPLACE Presented by: Arlene F. Klinedinst, Esq. & Boezellar Gunny Thomas, Director of Individual Training, Top Guard Security

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1 VIOLENCE IN THE WORKPLACE Presented by: Arlene F. Klinedinst, Esq. & Boezellar Gunny Thomas, Director of Individual Training, Top Guard Security 1 1 OVERVIEW I. Statistics II. Potential for Liability III. Reducing Risk of Violence in the Workplace IV. Advice from an Expert Boezellar Gunny Thomas V. Cases Involving Workplace Violence 2 2 I. STATISTICS U.S. Secret Service Report on 27 Mass Attacks in 2018: 91 people killed 107 injured Almost all attackers made prior threats 33% of attackers had history of domestic violence 66% of attackers had mental health issues (only 44% treated) All but one attack during mid-week >50% of attackers had grievance against family, workplace, or another person 22% - no known motive Source: Associated Press, July 10,

2 POTENTIAL FOR LIABILITY 4 4 WHEN YOUR EMPLOYEE IS THE VICTIM Virginia Worker s Compensation Act (VWCA) The VWCA bars other legal/equitable remedies when an employee s injury arises out of and in the course of employment A claimant can establish that an injury arose out of employment by: 1. showing that the assault resulted from an increased risk of assault created by the employment; OR 2. proving that his employment motivated the assailant to attack (King v. DTH Contract Servs., 69 Va. App. 703 (2019)) 5 5 WHEN YOUR EMPLOYEE IS THE VICTIM Negligence if the employee s injury is not covered by the VWCA An employer has no greater duty to the employee than to a business invitee (Phelps v. Southland Corp., 30 Va. Cir. 91 (1993)) To prevail an employee must show that the employer had knowledge of the violence of the attacker or that an attack was probable 6 6 2

3 WHEN YOUR EMPLOYEE IS THE ASSAILANT Vicarious Liability (aka respondeat superior) Employer must have knowledge of the employee s violent propensity, which must be discoverable by a reasonable investigation (Stansfield v. Goodyear Tire & Rubber Co., 50 Va. Cir. 318 (1999) Employer Ratification of Employee s Violent Conduct Employer may be liable if: The employer witnessed the violent employee threaten and commit battery upon another person; and Failed to discipline or control the violent employee (Fisher v. A.W. Temple, Inc., 2000 Va. Cir. LEXIS 193 (Aug. 4, 2000) 7 7 WHEN YOUR EMPLOYEE IS THE ASSAILANT Negligent Hiring/Retention Hiring: employer liable if negligently place an unfit person in an employment situation involving an unreasonable risk of harm to others (J. v. Victory Tabernacle Baptist Church, 236 Va. 206 (1988)) Unreasonable risk of harm requires the threat of serious and significant physical injury Retention: employer liable if knew or should have known that the employee posed an unreasonable risk of harm to others and failed to attempt to prevent further harm, and that employee subsequently injures another person (J. v. Victory Tabernacle Baptist Church, 236 Va. 206 (1988)) Negligent hiring/retention: can only be asserted by non-employees (Fisher, 2000 Va. Cir. LEXIS 193 (Aug. 4, 2000) 8 8 EMPLOYER STRATEGIES FOR REDUCING THE RISK OF VIOLENCE 9 9 3

4 ZERO TOLERANCE POLICY Establish a Zero Tolerance policy of inappropriate conduct or behavior, including: Threats (direct or indirect) Possessing, concealing, or using a weapon Physical assault upon oneself or another person Actions which damage, destroy, or sabotage property Intimidating or frightening others Harassing, stalking, or showing undue focus on another person Physically aggressive acts (ex.- shaking fists at another person) Verbal abuse, including, offensive, profane, and vulgar language Discrimination, harassment, retaliation WORK ENVIRONMENT Establish: An environment that minimizes negative feelings An effective open-door or grievance policy Various opportunities for professional development Promote: Quality of life issues Maintain: Impartial and consistent discipline for employees who exhibit improper or poor work performance WORK ENVIRONMENT Encourage: Open communication among managers, employees and union representatives (if applicable). Discourage: Workplace romances (and/or prohibit with no dating or anti-nepotism policies) Horseplay Excessive Political or Joking Discussions Implement a well-published: Disciplinary policy Anti-harassment policy Anti-discrimination policy Anti-retaliation policy

5 SAFETY Secure a physically safe workplace including parking areas Implement security measures, such as: Employee photo I.D. badges On-site security guard services Registration of all visitors to the premises during working hours Encourage immediate reporting of suspicious or unauthorized individuals wandering or loitering around the workplace facilities or parking areas Encourage immediate reporting of threats or threatening behavior EDUCATION Start Early: Educate managers/employees on what to do and whom to alert when a potentially violent situation arises Instruct managers/employees regarding: 1. Conflict resolution; 2. Stress reduction; and 3. Behavior that may lead to violent conduct Explore computer-based safety training programs Short, frequent training updates often better than longer, less-frequent training RECOGNIZE THE WARNING SIGNS Stage One: The individual is: Intimidating/bullying; Discourteous, disrespectful; uncooperative; and/or Verbally abusive How to Respond: Steps must be taken to show the offending individual that this is behavior that will not be tolerated in the workplace, and to show other employees that any incidents of improper behavior will be immediately resolved to maintain a safe working environment

6 IV. ADVICE FROM AN EXPERT Boezellar Gunny Thomas Director, Individual Training Top Guard Security, Inc ARMED AGGRESSOR TRAINING CLIENT DATE INSTRUCTOR 17 Surviving an Active Shooter Event RUN. HIDE. FIGHT. 6

7 Messenger Post Media, Seth Binnix FBI Image Repository (Stock Image) 3 19 Credit Alan Kim/The Roanoke Times, via Associated Press CNN News ACTIVE SHOOTER INCIDENTS Source: Federal Bureau of Investigation, Incidents occurred between 2000 and ,217 Casualties including killed and wounded (shooters not included in this total) 1,418 killed in 250 incidents wounded in 250 incidents FACTS Source: Federal Bureau of Investigation, INCIDENTS:

8 Source: Federal Bureau of Investigation, CASUALTIES: Source: Federal Bureau of Investigation, WHAT IS AN ACTIVE SHOOTER? An active shooter is an individual aggressively engaged in killing or attempting to kill in a confined and populated area 24 The situation occurs rapidly and without warning. Shooter s objective may be a specific target or may be all persons ANYONE within weapon range is a probable victim. Most incidents end in less than 15 minutes, so Law Enforcement may be unable to help in time. Shooter often commits suicide or suicide by cop. Individuals need to prepare physically and mentally to respond to an active shooter incident. 24 8

9 James Holmes Aurora, CO Eric Harris & Dylan Kiebold Columbine High School Jared Lee Loughner Tucson, AZ Adam Lanza Newtown, CT KNOWN ACTIVE SHOOTERS Dr Amy Bishop University of Alabama Seung-Hui Cho age 23 Virginia Tech Shooter Blacksburg, Virginia DeWayne Craddock age 40 City of Virginia Beach Shooter LOCAL ACTIVE SHOOTERS Security Guard encounters Active Shooter New Life Church Colorado 2007 Matthew John Murray Age 24 Colorado Springs Colorado NEW LIFE CHURCH 9

10 Don t assume it will never happen to you! BE AWARE OF YOUR SURROUNDINGS KNOW YOUR EXACT WORKPLACE ADDRESS HAVE AN ESCAPE PLAN (SAME AS IN A FIRE) Potential dangers Blocked exits Broken locks Unlighted areas Street address Suite number Floor Etc. Be aware of ALL exits for any facility you visit or work in Work as a team to pre-plan for any incidents safe place to assemble, safest place to hide % of incidents are committed by a single attacker 96% of active shooters are male 55% of incidents occur in a commercial setting 78% Of active shooters have a connection with at least one of the victims 40% end with shooter committing suicide 29% of incidents occur in a school setting 46% end through applied force (law enforcement, security, others) Source: New York Police Department 29 Concerning Behavior Number % Concerning Behavior Number % Mental Health Violent media usage Interpersonal Interactions Weight/eating 8 13 Leakage (telling another of their intent) Drug abuse 8 13 Quality of thinking or communications Impulsivity 7 11 Work Performance (of 24) Alcohol abuse 6 10 School Performance (of 12) 5 42 Physical health 6 10 Threats/confrontations Other (e.g. idolizing criminals) 5 8 Anger Sexual Behavior 4 6 Physical Aggression Quality of Sleep 3 5 Risk-taking Hygiene/appearance 2 3 Firearm behavior A Study of the Pre-Attack Behavior of Active Shooters in the US (00-13), June Myth: Active Shooters are all loners. Reality: 68% lived with some one. 86% had significant in-person social interactions. Source: Federal Bureau of Investigation, What should I look for?: The average active shooter displayed 4.7 concerning behaviors. 10

11 RUN! HIDE! FIGHT! RUN! USE YOUR ESCAPE PLAN GET OUT AT THE FIRST SIGN OF DANGER LEAVE BELONGINGS BEHIND TAKE OTHERS WITH YOU IF POSSIBLE TRY TO PREVENT OTHERS FROM ENTERING CALL 911 WHEN SAFE TO DO SO FOLLOW ORDERS OF LAW ENFORCEMENT KEEP YOUR HANDS VISIBLE HIDE! FIND A PLACE TO HIDE WHERE SHOOTER IS LESS LIKELY TO FIND YOU STAY OUT OF THE SHOOTER S VIEW LOCK THE DOOR, BARRICADE WITH HEAVY FURNITURE IF POSSIBLE HIDE BEHIND HEAVY OBJECTS (DESKS, FILE CABINETS, ETC) TURN OFF LIGHTS AND REMAIN QUIET SILENCE YOUR CELL PHONE DIAL 911 IF POSSIBLE LEAVE THE LINE OPEN IF YOU CANNOT TALK ***You cannot text 911!***

12 A Lockdown is a process to secure an area from a threat which can include containing an incident in its area of origin. If a Lockdown is announced: All Exterior Doors are Secured Checkpoints are Established at Vehicle Entrances Law Enforcement May Be Called to Assist Movement of those Inside is Restricted Visitors are Prevented from Entering Employee Access is Situational 34 YOUR ACTIONS Cease Normal Operations Clear All Hallways Secure Doors Shelter in Place Until Otherwise Directed by the Authority or All Clear is Announced 34 FIGHT! AS A LAST RESORT YOU MAY NEED TO ATTACK THE SHOOTER ACT AS AGGRESSIVELY AS POSSIBLE AN ATTACK AS A GROUP IS MORE EFFECTIVE THAN AS A SINGLE PERSON LOCATE AN IMPROVISED WEAPON (CHAIR, SHARP OBJECTS, ETC) AND THROW THINGS YELL AND SHOUT, TRY TO DISORIENT THE SHOOTER COMMIT TO YOUR ACTIONS! FIGHT! FIGHT! FIGHT! DETAILS ARE CRUCIAL If You Reach 911 Before Law Enforcement Arrives, Provide the Following Information: Exact Address of Incident Location CRITICAL Number of Shooters and Descriptions (clothing, features) Location of Shooter(s) within Building Number and Type of Weapons Seen Number and Location of Potential Victims

13 When Law Enforcement Arrives: THEY WILL PROBABLY ENTER IN TEAMS May be in standard uniforms or SWAT style attire May be armed with rifles and shotguns THEY WON T USUALLY KNOW WHAT THE SHOOTER LOOKS LIKE Be prepared for them shouting orders and pushing people to the ground Keep your hands empty and in plain sight Follow orders to the letter save your questions for later THEIR OBJECTIVE IS TO SECURE THE SCENE Understand that the rescue of the wounded will not occur until the scene is secure Expect to be taken to a safe location and held for identification and debriefing Follow-Up By Management and Others: ACCOUNTABILITY CHECK COMMUNICATIONS NOTIFICATIONS SUPPORT AT A DESIGNATED SAFE GATHERING POINT perform accountability check of employees to see who is missing or injured inform Law Enforcement of any missing persons Determine a means of communications for those who are safe to notify their families Address notification to families of casualties coordinate with Law Enforcement Provide for physical and psychological care for all involved including yourself! YOUR GOAL IS TO RETURN HOME IN THE SAME CONDITION AS WHEN YOU LEFT HOME!

14 FOR FURTHER INFORMATION Contact Top Guard Security Director of Training Ray Rottler CASES OF WORKPLACE VIOLENCE KING V. DTH CONTRACT SERVS., 69 VA. APP. 703 (VA. CT. APP. 2019) Offense: Stabbing Assailant: Third-Party Cause of Action: Workers Compensation Facts: A former co-worker stabbed a current employee while he was working and later committed suicide. Remanded the case to the Workers Compensation Commission after finding evidence that the offense arose out of the employee s course of employment

15 HARTMAN V. RETAILERS & MFR. DISTRIB. MARKING, 929 F. SUPP. 2D 581 (W.D. VA. 2013) Offense: Sexual Assault Assailant: Employee Cause of Action: respondeat superior; negligence An employee was sexually assaulted by a co-worker who was a registered sex offender. The Court allowed respondeat superior and negligence claims to go forward (i.e. claims survived motion to dismiss) BUTLER V. SOUTHERN STATES COOPERATIVE, INC., 270 VA. 459 (VA. 2005) Offense: Assault and Battery Assailant: Employee Cause of action: respondeat superior An employee was kissed, assaulted, and battered by a co-worker. When an assault is personal to the employee and not directed against her as an employee or because of her employment, the injury does not arise out of the employment FISHER V. A.W. TEMPLE, INC., 2000 VA. CIR. LEXIS 193 (VA. CIR. 2000) Offense: Battery Assailant: Employee Cause of action: employer ratification of employee conduct An employee was injured by a co-worker who was allegedly a KKK member. Injured employee sued employer for ratifying the assailant s conduct. The Court denied the employer s demurrer based on ratification (i.e. claims survived motion to dismiss)

16 STANSFIELD V. GOODYEAR TIRE & RUBBER CO., 50 VA. CIR. 318 (VA. CIR. 1999) Offense: Sexual Assault Assailant: Employee Victim: Third-Party Cause of action: Negligence The employer was not liable because there was no fact demonstrated that the employee had a propensity, discoverable by a reasonable investigation, to engage in criminal sexual activity RICHMOND NEWSPAPERS V. HAZELWOOD, 249 VA. 369 (VA. 1995) Offense: Battery Assailant: Employee Cause of Action: Negligence An employee was injured when goosed by a fellow employee. The injured employee brought suit against his employer for injuries resulting from the goosing incident. Where an assault was personal and not directed against him as an employee or because of his employment, the injury did not arise out of the course of employment ROBERSON V. WHETSELL, 21 VA. APP. 268 (VA. CT. APP. 1995) Offense: Shooting Assailant: Third-Party Cause of action: Workers Compensation The employee was shot on the only route between the employer s office and his worksite. There was a direct causal connection between the fatal injuries and the conditions of employment (i.e. workers compensation benefits granted)

17 WILLIAMS V. DOWELL, 34 VA. CIR. 240 (1994) Offense: Battery Assailant: Employee Victim: Third-Party Cause of Action: respondeat superior Patrons were attacked by the employee, a waitress. The waitress s acts were deviations form the restaurant s business and were not acts undertaken in the scope of employment that made the restaurant liable EVANS V. SUTTON, 32 VA. CIR. 343 (VA. CIR. 1994) Offense: Sexual Assault Assailant: Third-Party Cause of Action: Workers Compensation The employee, a physical therapist, was inappropriately touched by a patient. Remedy was appropriate under Workers Compensation because the employer was aware of the patient s past inappropriate advances but nevertheless required the plaintiff to continue to provide treatments to him PHELPS V. SOUTHLAND CORP., 30 VA. CIR. 91 (VA. CIR. 1993) Offense: Sexual Assault Assailant: Third-Party Cause of Action: Negligence The employee alleged that the employer had a duty to provide her with a safe workplace, instruct her in violence protection, and provide her with proper security. Because the attack was not work-related, the employer had no greater duty to the employee than to a business invitee

18 PLUMMER V. LANDMARK COMMUNICATIONS, INC., 235 VA. 78 (VA. 1988). Offense: Shooting Assailant: Third-Party Cause of Action: Negligence The employee was a route carrier of newspapers. She was shot while waiting to obtain her supply of newspapers for delivery in a dark parking lot. Because the probability of assault was augmented by the character of the job and the environment in which the employee worked, the injury arose out of the employment R&T INVESTMENTS, LTD. V. JOHNS, 228 VA. 249 (VA. 1984) Offense: Battery Assailant: Third-Party Cause of Action: Workers Compensation Employee was injured during the robbery of a bank where she had gone to deposit her employer s money. The Court found a direct causal connection sufficient to prove that the injury arose out of the employment (i.e. workers compensation benefits granted) CARY V. HOTEL RUEGER, INC., 195 VA. 980 (VA. 1980) Offense: Shooting Assailant: Employee Victim: Third-Party Cause of Action: Wrongful Death Decedent was shot by a bell boy employed by the hotel. The shooting was not an act fairly and naturally incident to the business of the hotel

19 AURORA MANUFACTURING FACILITY Aurora, Illinois Date: Feb. 15, 2019 Assailant: Employee Victims: Employees Cause of Action: Negligence Mass shooting at an Aurora manufacturing facility. An injured employee filed suit against the Illinois State Police for allowing the gunman to illegally possess a firearm. The gunman was a convicted felon who lied on his concealed carry permit about his criminal history and was subsequently granted a permit MERCY HOSPITAL SHOOTING Chicago, Illinois Date: Nov. 19, 2018 Assailant: Employee Cause of Action: Negligence Gunman shot and killed multiple people at hospital. Four days before the shooting, the gunman s co-worker sued their employer for hiring the gunman after the gunman was dismissed from the Chicago Fire Department Academy years earlier after being accused of verbally/physically abusing women QUESTIONS? THANKS AND BE SAFE OUT THERE!

20 YOUR PRESENTERS Boezellar Gunny Thomas Director of Individual Training Top Guard Security Arlene F. Klinedinst Vandeventer Black LLP