By W. Barry Nixon, WorkplaceViolence911.com
The purpose of this document is to assist organizations of all kinds, public agencies and private employers, in their efforts to reduce the risk of violence occurring in their respective workplaces. It is intended to serve as a resource document and a reference source for information.
The Occupational Safety and Health Act (OSHA) – General Duty Clause
Under OSHA employers have a “general duty” to provide employees with work and a workplace free from “recognized hazards that are causing or are likely to cause death or serious physical harm.” Workplace violence prevention has generally been accepted as falling under the auspices of this “general duty clause” when hazards involved:
- create a ‘significant risk’ to employees in other than ‘a freakish or utterly implausible concurrence of circumstances,’ (see Langer Roofing and Sheet Metal Co., Inc. v. OSHRC 1 )
- are known to the employer and are considered hazards in the employer’s business or industry2 and
- are ones which the employer can reasonably be expected to prevent.3
Workplace violence is unique as a workplace hazard because unlike other hazards it does not involve a work process or the weather, but instead an act committed by a thinking mobile person. Because workplace violence is perpetrated by a person OSHA categorizes incidents based on the relationship between the assailant and the worker or workplace:
Violence by Strangers: An individual that has no legitimate relationship with an employee or the employer, e.g., a robber of a convenient store.
Violence by Customers/Clients: In these incidents, the violence is committed by someone who receives a service provided by a business, such as a current or former customer, client or patient, a passenger, a criminal suspect or a prisoner.
Violence by Co-Workers: In co-worker incidents, the perpetrator has an employment relationship with the workplace. The perpetrator can be a current or former employee, a prospective employee, a current or former supervisor or a manager. Co-worker violence that occurs outside the workplace, but which resulted or arose from the employment relationship would be included in this category. This type of violence can again be divided into two types. Violence between supervisors and subordinates, and violence between workers at the same levels.
Violence by Personal Relations: In personal relations incidents, the violence is committed by someone who has a personal relationship with the worker, such as a current or former spouse or partner, a relative or a friend. Included in this category is the perpetrator who has a personal dispute with the worker and enters the workplace to harass, threaten, injure or kill.
Definition of Workplace Violence
Surprisingly, there is much debate amongst Security, Human Resources, Safety and Workplace Violence Prevention experts on a specific definition of workplace violence. For example, the academic community tends to favor the use of the term aggression instead of violence, however, for the most part the business community still uses the term violence. Due to the varying definitions I share a few of the key ones below:
According to the National Institute for Occupational Safety and Health (NIOSH) Workplace Violence is any physical assault, threatening behavior or verbal abuse occurring in the work setting. It includes, but is not limited to beatings, stabbing, suicides, shootings, rapes, near suicides, psychological traumas such as threats, obscene phone calls, an intimidating presence, and harassment of any nature such as being followed, sworn at or shouted at.
The law enforcement community defines Workplace Violence as the commission of proscribed criminal acts or coercive behavior which occurs in the work setting. It includes but is not limited to homicides, forcible sex offenses, kidnaping, assault, robbery, menacing, reckless endangerment, harassment and disorderly conduct. The term coercive behavior is intended to convey the sense that workplace violence may take many forms in addition to the use of force. The aggressor may use berating language, physical or verbal threats or damage personal property.
ASIS International’s Workplace Violence Guidelines state that Workplace violence encompasses a broad range of behaviors along a continuum, from behaviors of concern to threatening behavior to acts causing physical injury or death. At the “low” end of the continuum lie disruptive, psychologically aggressive, or emotionally abusive behaviors that generate anxiety or create a climate of distrust and impact employee productivity and morale. Moving along the continuum are any words or other actions that are reasonably perceived to be intimidating, frightening, or threatening to the employee and that cause reasonable concern for workplace safety—including direct or veiled threats, stalking, or aggressive harassment. Finally, there are overt acts causing physical injury from nonfatal physical assaults—including pushing, shoving, hitting, kicking, or biting—to, in the worst cases, homicides—including shootings, stabbings, and bombings. Workplace violence also includes words or actions that indicate that someone might harm him or herself at the workplace. It may also include threats or damage to company property.
The National Institute for Prevention of Workplace Violence, Inc. defines workplace violence as follows:
Acts of aggression or violence, that occur in, or are related to the workplace, whether intentional or reckless, including assaults, threats, disruptive, aggressive, hostile or verbal or emotionally abusive behaviors that generates fear for one’s safety or entails a perceived risk of harm to individuals, or damage to an organization’s resources or capabilities.
Business Impact
Overall in 2009 just slightly over one out of 5.5 fatalities at work were caused by assaults and violent acts making it the third leading cause of death for people while working.
*Data for 2009 are preliminary.
Note: Percentages may not add to totals because of rounding.
Source: U.S. Bureau of Labor Statistics, U.S. Department of Labor, 2010.
Note: Assaults and violent acts includes homicides, suicides, animal assaults and unidentifiable other.
Based on a study conducted by the Bureau of Labor Statistics in 2005 approximately 5% of all businesses in the US experienced an incident of workplace violence. The study also reported that While 5 percent of all establishments, including State and local governments, had a violent incident, 50% of organizations with more than 1,000 employees experienced and incident.
Source: Survey on Workplace Violence Prevention conducted by the US Bureau of Labor Statistics in 2005, http://www.bls.gov/iif/oshwc/osnr0026.pdf
Financial Impact of Workplace Violence
NIOSH estimates the economic cost of workplace violence nationwide at around $121 billion a year. Nonfatal workplace assaults alone result in more than 876,000 lost workdays and $16 millions in lost wages.
Depending on the nature and severity of the incident, subsequent costs might be incurred due to lost productivity and/or materials (e.g., plant closings), debriefing/counseling, contract/sales losses, cleaning and refurbishing of impacted areas, increase in insurance costs, lawsuits and settlements, PR measures to combat negative publicity, increased retention and recruiting issues, and organizational change initiatives. In addition, there is a profound impact on the business operations from decreased productivity, delayed shipments, lost sales, management distraction, increased absenteeism, worker compensation and medical claims, etc.
The overall impact and cost to a business of reacting after an incident occurs can be staggering versus the cost of focusing on preventing an incident from occurring in the first place. According to the special report ‘The Financial Impact of Workplace Violence’ the cost of reacting after a serious incident has occurred is 100 times more costly than taking preventative actions.4 Illustrative of this point is the shooting incident at Virginia Polytechnic Institute and State University (VA Tech) on April 16, 2007, a tragedy which resulted in 32 victims and $8 million in expenses for the university. These costs included $417,000 for cleaning the site of the shooting alone, besides the costs incurred for hiring more police officers and counselors, plus added security measures such as altering every set of door handles on campus in a way so they cannot be chained together, which will cost VA Tech over $1 million.
Industries and Positions Most Heavily Impacted
Because of the nature of workplace violence virtually any business or industry that employs people or provides services and/or products to people can be impacted. The positions within a company that have the greatest exposure to workplace homicide are the ones that involve handling cash or other valuables and that deal directly with clients, customers or people in providing a service.
Roughly Two-Thirds of Workplace Homicides Involve Robbery
Source: US Bureau of Labor Statistics Reprinted with permission of NCCI from the NCCI Research Brief, Summer 2008 by Martin Wolf, Ph.D.
Overall government employees are victimized [ fatal and non fatal incidents] about three times as often as private sector employees and the most heavily impacted industries are late night retail/convenient sales, law enforcement/security, education, health services, and transportation.
Fatal versus Non Fatal Incidents
While workplace shootings such as the incidents at Columbine, Virginia Tech, Fort Hood, NASA, etc. get considerable media coverage despite the fact that the data is overwhelmingly clear that the larger problem from a numerical perspective is non fatal workplace violence incidents.
Source: US Bureau of Labor Statistics
Reprinted with permission of NCCI from the NCCI Research Brief, Summer 2008 by Martin Wolf, Ph.D.
Over the first 10 years of the 21st century, 2000-2009, an average of 590 work-related homicides have occurred each year in the United States.
Number of Workplace Deaths from Assaults and Violent Acts By a Person, 2003 – 2009
Please note that ‘Suicides/Self Inflicted Injuries’ and ‘Homicides’ may not add up exactly to ‘Assaults & Violent Acts By Persons’ do to some items being coded as unspecified or unknown. For a full explanation go to http://www.bls.gov/iif/#data.
Source: US Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 2009, http://data.bls.gov/gqt/#RequestData (see WorkplaceViolence911.com to learn how to build a chart of data based on your requirements.)
About 4 out of every 5 homicide victims in 2008 were male. The type of assailants in these cases differed for men and women. Robbers and other assailants made up 72 percent of assailants for men, and 51 percent of assailants for women. Relatives and other personal acquaintances accounted for only 4 percent of assailants of homicides for men, but 28 percent for women 4/1 .
Shootings accounted for 80 percent of all homicides in 2008 (421 fatal injuries). Co-workers and former co-workers were the assailants in 12 percent of all shootings. Robbers were the assailants in another 40 percent of cases in 2008. Nearly half of these shootings (48 percent) occurred in public buildings, thereby endangering bystanders.
Sales and related occupations accounted for 26 percent of decedents in shootings. Most shootings occurred in the private sector (86 percent) whereas 14 percent of shootings occurred in government. Of the shootings within the private sector, 88 percent occurred within service-providing industries, mostly in trade, transportation, and utilities.
Source: US Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 2009; http://www.bls.gov/iif/oshwc/cfoi/cfoi_revised08.pdf
Workplace Suicides
Workplace suicides rose from 196 cases in 2007 to 263 cases in 2008, an increase of 28 percent and the highest number ever reported by the fatality census. From 2008 to 2009 the number of workplace suicides decrease by approximately 10% to 237 cases in 2009.
Non Fatal Incidents
Non Fatal Incidents include simple assaults, aggravated assaults, robberies, thefts, hostage taking, hijackings and rapes/sexual assaults and have accounted for an estimated 1.7 million reported incidents annually. According to Justice Department Bureau of Justice Statistics’ (BJS) the annual rate dropped to 572,000 incidents against persons age 16 or older while they were at work or on duty in 2009.
Incidence rate for workplace assaults has shown little net change since 1999
FTE is Full-Time Equivalent
Source: US Bureau of Labor Statistics; US Department of Justice.
Reprinted with permission of NCCI from the NCCI Research Brief, Summer 2008 by Martin Wolf, Ph.D.
Nonfatal assaults occur most often in nursing homes, social services, hospitals and late night convenient stores.
Within the healthcare sector, most assaults occur in nursing-related facilities
Source: US Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 2009; http://www.bls.gov/iif/oshwc/cfoi/cfoi_revised08.pdf
Assaults against workers in the healthcare industry account for the largest portion of workplace assaults
SOURCE: US Bureau of Labor Statistics
Reprinted with permission of NCCI from the NCCI Research Brief, Summer 2008 by Martin Wolf, Ph.D.
Workplace Shootings
As stated earlier mass shootings receive a great deal of coverage in the media. Out of 421 workplace shootings recorded in 2008 (24 percent) occurred in retail trade. Workplace shootings in manufacturing were less common, with 17 shootings reported in 2008.
Legal Issues Associated With Workplace Violence
The federal Occupational Safety and Health Act applies to workers employed by private companies and Executive Order 12196 and 29 CFR extended much of that coverage to Federal Agency employees as well. State OSHA plans apply to many workers employed by government owned or by public authorities. Additionally, many rail and air transportation firms are covered under the Federal Railroad Administration and Federal Aviation Administration safety and security guidelines and regulations.
The Occupational Safety and Health Administration has issued recommend guidelines regarding dealing with workplace violence for several industries including late night retail establishments, health care/social services which can be accessed online at http://www.osha.gov/NewInit/WorkplaceViolence/index.html.
In addition, legal concepts to be mindful of include negligent hiring, negligent retention, negligent misrepresentation, negligent security, negligent entrustment, etc. as well as the American’s Disability Act , worker’s compensation laws (see www.Workplaceviolence911.com) and domestic violence (see www.CAEPV.org for in-depth coverage).
Negligence
A number of legal theories are used to find an employer liable for failing to provide a safe work environment. Traditionally, the doctrine of respondeat superior has been used to find liability based on negligence. To successfully recover monetary damages under the doctrine of respondeat superior, the plaintiff must establish and prove four elements.
1. The existence of a duty
2. A breach of that duty
3. An injury or occurrence of damages
4. A factual connection between the breach of duty and the injury or damages.
Negligent hiring
The doctrine of negligent hiring was developed from the “fellow servant rule,” which imposed on employers the obligation to hire and retain employees who would not pose a danger to other employees (Lienhard, 1996; Woska, 1991). The co-worker injured as a result of violence could recover damages due to the employer’s breach of duty in hiring the violent offender. Unlike the doctrine of respondeat superior, which is based on vicarious liability-holding another entity responsible for the torts of others-the doctrine of negligent hiring holds the employer directly liable for negligence. In addition, the latter doctrine can be extended to include acts outside the scope of employment.
Negligent hiring is defined as the hiring of an employee the employer knew or should have known was unfit or unsuitable to the workplace environment due to a history of or predisposition for violent behavior. In essences, the legal theory is that the employer was negligent or failed to conduct a proper and adequate pre-employment screening, therefore, alerting behaviors and information of the employee’s propensity for violence were not ascertained, which created a risk of ham to foreseeable victims.
Negligent hiring cases have had verdicts of up to $40 million (Source: Gurtin vs. Nurse Connection, et. al., 2002) and the average settlement of a negligent hiring lawsuit is nearly $1 million (Source: Human Resources Management, 2008).
To avoid negligent hiring lawsuits most firms have implemented background screening programs to attempt to screen out bad hires and to reduce the risk of being liable for negligent hiring. To find a background screening firm to assist you go to PreemploymentDirectory.com, the most comprehensive source for finding a background screening firm.
Negligent Retention
Similar to the doctrine of negligent hiring, the doctrine of negligent retention holds an employer directly liable for retaining an employee or not taking steps to insure the safety of third parties after the employer becomes aware of, or should have become aware of the employee’s unsuitable behavior or propensity for violence. In essence, the legal argument is advanced that the employee’s behavior put the employer on notice, or should have, that the employee was not suitable to the work environment or posed a threat.6
The above information has been presented to give human resource, security and management professionals charged with the responsibility for addressing workplace violence a good sense of the nature, scope and size of workplace violence. Needless to say workplace violence continues to be a very real issue that confronts today’s workplaces and we hope this information is helpful.
For additional information and to learn how to prevent and address workplace violence visit our award winning web site, www.workplaceviolence911.com.
You are also invited to accept a complimentary subscription to The Workplace Violence Prevention eReport which is published online every other month. It will keep you current on the latest developments and information related to workplace violence. Sign up today.
Please contact Barry Nixon with any questions or comments at Barry@wvp911.com regarding the information in the fact sheet or other questions regarding workplace violence.
Glossary and Important Information
Please note that BLS creates reports twice a year, preliminary and final, which means that reported numbers may differ slightly depending on which report they appear in.
You should also be aware that some of the reports and studies are not conducted on annual or regular basis so information is being reported based on the latest available information.
Assaults and Violent Acts
Workplace Homicides include deaths that occur in the workplace from assaults and violent acts by a person (meaning it excludes assaults by animals) and suicides.
Workplace Shootings include deaths that occur in the workplace that are inflicted by a firearm. This means that deaths that are the result of other objects use as weapon, e.g. knives, blunt object, etc. are not included in this number.
Disclaimer
The information contained in this document is provided for general informational purposes only and while every attempt has been made to ensure the accuracy of the information presented we do not guarantee its accuracy or completeness nor does The National Institute for Prevention of Workplace Violence, Inc. (NIPWV) assume any liability that may result in readers reliance upon such information. NIPWV expressly disclaims any and all warranties of any kind including all express, statutory and implied warranties including the implied warranties of merchantability and fitness for a particular purpose. Readers assume full responsibility for any and all actions taken based on information provided in this document. No information in this document shall be construed to be legal advice which should be sought from a competent attorney.
Bibliography for 2011-2012 Fact Sheet
1. United States Court of Appeals for the Seventh Circuit in Langer Roofing and Sheet Metal Co., Inc. v. OSHRC, 524 F.2d 1337, (7th Cir. 1975); OSHRC Docket Nos. 15681, 15927 and 76-0002.
2. Waldon Health Care, 16 BNA OSHC at 1601
3. Pelron Corporation, 12 BNA OSHC 1833, 1835, 1986 CCH OSHD 27, 605, p.35,872 (no.82-388, 1986).
4. Texas Workers’ Compensation Commission, WV Prevention Strategies for Employers Fact Sheet; resource.center@twcc.state.tx.us, http://www.tdi.state.tx.us/pubs/videoresource/fswvpstrat.pdf
5. Nixon, W. Barry, The Financial Impact of Workplace Violence, National Institute for Prevention of Workplace Violence, Inc., ISBN 0-9749403-4-8
6. Mckoy, Yvonne and Smith, Mable H; Legal Considerations Of Workplace Violence In Healthcare Environments, Nursing Forum, Jan-Mar 2001. ISSN: 00296473
For additional information go to www.Workplaceviolence911.com or contact W. Barry Nixon at Barry@wvp911.com
Resources
Bureau of Labor Statistics – provides valuable statistics on workplace violence via its Occupational Injuries/Illnesses and Fatal Injuries Profiles. (See http://data.bls.gov/gqt/InitialPage)
The Corporate Alliance to End Partner Violence – a national nonprofit organization dedicated to reducing the costs and consequences of partner violence at work – and eliminating it altogether. From policies and programs to legal issues and legislation, CAEPV is a credible source for information, materials and advice. (see http://www.caepv.org/)
The Federal Bureau for Investigation (FBI) – Vigorous prevention programs, timely intervention, and appropriate responses by organizations and their employees will contribute significantly to a safe and secure work environment. Click here for more information or visit FBI.gov)
The National Institute of Occupational Safety and Health (NIOSH) –provides research and information on preventing workplace violence. (See http://www.cdc.gov/niosh.html.)
The National Institute for Prevention of Workplace Violence, Inc. – provides consulting and training to help organizations implement programs prevent workplace violence and to address incidents should one occur. (See www.WorkplaceViolence911.com)
Occupational Safety and Health Administration – the lead agency responsible for investigating workplace violence incidents. There web site provides a large quantity of information about workplace violence. (See http://www.osha.gov/SLTC/workplaceviolence/index.html)
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