Avoiding Unexpected Liability from Sexual Harassment and Workplace Violence Claims

by William N. Anderson
Hamilton, Westby, Antonowich & Anderson, L.L.C.

Revealing the Full Scope of your Workers’ Compensation Exposure

This paper was presented by Mr. Anderson at the June 18, 1999, Workers’ Comp Update ’99 sponsored by Council on Education in Management. It deals with the exclusive remedy provision of the Georgia Workers’ Compensation Act and how various tortious injuries and workplace violence situations may be compensable workers’ compensation claims. It also provides some suggestions on how to help prevent intentional torts in the workplace. If you would like to obtain more information on this seminar contact the Council or Mr. Anderson.

I. Introduction 

In light of recent events, now more than ever, the general public is aware of just how easily extreme violence can penetrate any environment. From schools, stores, shopping centers to downtown high rise office buildings, all are now exposed to such violence. Unfortunately, workplace violence nationwide is only increasing. According to the Department of Justice National Crime Statistics, almost three quarters of one million Americans are assaulted at work every year. This is approximately 12% of all the violent crime committed in the United States each year.This paper will provide you with a basic understanding of how the Exclusive Remedy Provision of the Georgia Workers’ Compensation Act may limit an employer’s liability in workplace violence situations. Additionally, this paper will discuss compensable versus non-compensable workplace violence scenario, whether an assailant can claim entitlement to workers’ compensation benefits, risk factors which may help one identify potential workplace problems and steps which may be taken to help minimize the risk of workplace violence.

II. Workplace Violence/Harassment

A. Exclusive Remedy 

O.C.G.A. § 34-9-11 provides that the rights and remedies granted to an employee under the Workers’ Compensation Act shall exclude all other rights and remedies of such an employee or other person standing in the employee’s shoes against the Employer and Insurer. In intentional tort claims, this determination depends upon whether the injury was intentionally committed for entirely personal reasons or whether the injury resulted out of a work-related situation. (Discussed at sub-section III below).

The legislative intent behind the Exclusive Remedy Provision and the overall Workers’ Compensation Act was that an employer would give up certain defenses, such as contributory negligence, in exchange for the Workers’ Compensation Act placing a cap on liability and allowing some control over medical treatment of an injured worker.  Bluebell Globe Manufacturing Company v. Baird, 64 Ga.App. 347 13 S.E.2d 105 (1941).

While the Georgia courts have historically supported the legislative intent behind the Exclusive Remedy Provision, a recent Georgia Supreme Court case potentially threatens to undermine this provision. This case should be considered throughout the discussion of workplace violence below. In Potts v. UAP-GA AG. Chem, Inc., (No.S97G1889, Sept. 14, 1998), the Supreme Court reversed the granting of summary judgment to an employer and its branch manager finding that they were not entitled, as a matter of law, to tort immunity pursuant to the Exclusive Remedy Provision of the Workers’ Compensation Act. 

Potts involved an employee becoming sick after being exposed to cleaning chemicals on the job. The employee was in and out of the hospital being treated for chemical poisoning and other possible conditions. One of the treating physicians stopped treatment for chemical poisoning on the basis that he had been told by the employer’s branch manager that the Claimant could not have been exposed to any chemicals on the job. Sadly, the Claimant eventually died, the widow and dependents filed a wrongful death and survival action against the employer and the employer’s branch manager alleged fraud and intentional infliction of emotional distress. The Trial Court granted summary judgment finding that the action was barred by Exclusive Remedy Provision of the Workers’ Compensation Act. The Court of Appeals affirmed this decision but was overturned by the Georgia Supreme Court.

The Georgia Supreme Court found that tort immunity was dependent upon the compensability of the injury under the Workers’ Compensation Act. It found that if the wilful act of a third person was directed against an employee for personal reasons, then this was not a compensable injury under the Workers’ Compensation Act and there would be no tort immunity. In this particular case, the Supreme Court found that the injury, here the death, did not arise out of and in the course of the Claimant’s employment with the employer but arose out of personal animosity between the employer’s branch manager and the employee. The Court also found that the alleged fraud of misinforming the medical providers did not occur during the Claimant’s employment or at the employer’s place of business, as it occurred only after the Claimant was already hospitalized. Additionally, the Court found that the employee was not performing any job duties at the time of the alleged fraud and the death did not arise out of or in the course of the employment, but was instead, as a result of the intentional misconduct of the employer’s branch manager and was not protected by the Exclusive Remedy Provision.

It is important to keep in mind that this opinion is only a ruling on the granting of summary judgment and that the case will now be referred back for a jury trial in a tort action. This case should be of some concern to employers and insurers as it appears as though the Georgia Supreme Court is slowing chipping away at the Exclusive Remedy Provision. It should be noted that the Court attempts to distinguish this opinion from prior opinions which appear to be in conflict with it by stating that “the absence of any reasonable remedy in this case readily distinguishes it from those which involve an action for mere delay in payment for or authorization of medical treatment.” (See Bright v. Nimmo, 243 Ga. 378, 320 S.E.2d 365 (1984)). The Georgia Supreme Court held that the intentional delay of workers’ compensation benefits did not give rise to an independent cause of action against the employer or its insurer as penalties for such a delay were provided by the Workers’ Compensation Act. See also, Aetna Casualty & Surety Company v. Davis, 253 Georgia 376, 320 S.E.2d 368 (1994), where the Georgia Supreme Court denied the Claimant’s attempts to circumvent the Exclusive Remedy Provision by finding that the Workers’ Compensation Act provides penalties for insurers controverting medical payments without reasonable grounds. It appears as though the primary basis for the Potts court distinguishing this case from prior cases is that the branch manager’s comments were entirely personal and did not arise of or in the course of the Claimant’s employment.

If an injured worker is able to circumvent the Exclusive Remedy Provision of the Workers’ Compensation Act, an employer and its respective insurance carriers will typically face much greater exposure than they would under the Workers’ Compensation Act. For example, an employee could potentially recoup their actual lost wages as opposed to a portion thereof. They will be able to pursue payment of all of their medical bills and may be able to collect for pain and suffering, and in certain situations, may be able to seek punitive damages. Typically, an employer’s exposure is greatly reduced by keeping a claim under the Workers’ Compensation Act.

III. Compensable Versus Non-Compensable Claims under the Workers’ Compensation Act 

The Georgia Courts have allowed an employee to collect against an employer outside the Workers’ Compensation Act, for acts which are purely personal and intentional. In order for any injury to be compensable under the Workers’ Compensation Act, it must “arise out of and in the course of” the employees employment. See O.C.G.A. § 34-9-1(4)

It should be noted that “arising out of” and “in the course of” an employee’s employment are two (2) separate terms with very distinct and important meanings. “Arising out of employment” generally means that there is a causal connection between the employee’s work or work environment and the subject injury. See O.C.G.A. § 34-9-1(4); see also, Hilton v. Interstate Brands Corporation, 155 Ga.App. 607, 271 S.E.2d 739 (1980). “In the course of employment” refers to the time, place, and circumstances under which the accident took place. O.C.G.A. § 34-9-1(4); see also State Department of Labor v. Yates, 131 Ga.App. 71, 205 S.E.2d 36 (1974). An employee seeking compensation under the Workers’ Compensation Act has the burden of showing that the accident or injury arose out of and in the course of employment, and that the person injured was at the time an employee with the employer. See Banks v. Ellijay Lumber Company, 59 Ga.App. 270, 200 S.E. 480 (1938).

If an injury is sustained as a result of an intentional act, even a felonious assault or other criminal act, this does not necessarily prevent the injury from being compensable under the Workers’ Compensation Act. If it is compensable, then the Exclusive Remedy Provision would protect the employer and its insurance carrier. If it is not compensable, the Exclusive Remedy Provision would not apply. If the wilful act is directed against the employee for reasons which are not personal to the employee, then even a felonious assault has been found to be compensable under the Workers’ Compensation Act.  Helton v. Interstate Brands Corporation, 155 Ga.App. 607, 271 S.E.2d 739 (1980). Where an injury results from an attack by a co-worker, the attack must be work-related and not for entirely personal reasons in order for it to be compensable and for the employer and insurer to be protected by the Exclusive Remedy Provision of the Workers’ Compensation Act. See Walsh Construction Company v. Hamilton, 185 Ga.App. 105, 363 S.E.2d 301 (1987).

A. Death Cases 

Even murder may be a compensable injury under the Workers’ Compensation Act. In Hand Crafted Furniture, Inc. v. Black, the widow and survivors of the deceased employer, Mr. Black, sued Mr. Black’s co-owner of Hand Crafted Furniture, Inc. Evidence presented at the Administrative Hearing revealed that there was increasing frustration between the two (2) owners due to the feeling that Mr. Black was not sharing in his part of the responsibilities, additionally, Mr. Black would not sell his 50% ownership interest to the co-owner. Evidence revealed that beginning in October, 1982, the co-owner began to plan the murder of Mr. Black with several other employees. In February, 1983, the co-owner and several employees murdered Mr. Black on the property of Hand Crafted Furniture, Inc. while Mr. Black was working. The three (3) murderers were convicted of murder and all received life sentences.

The employer and insurer contended that the claim was not compensable because this was an intentionally planned first degree murder of a co-worker and that the murder had occurred for purely personal reasons. The Administrative Law Judge found that according to the co-owner’s testimony, the reason Mr. Black was murdered was because he was a “poor business partner” and the co-owner desired to gain control of the entire business. For this reason, the Administrative Law Judge found that Mr. Black was murdered for a “business reason” rather than a personal reason. Applying the any evidence standard of review, the Court of Appeals found that there was some evidence to support the Administrative Law Judge’s finding that the murder was for a business reason and, as such, found that the death of Mr. Black arose out of and in the course of his employment and was, therefore, a compensable workers’ compensation death claim. Hand Crafted Furniture, Inc. Black, 182 Ga.App. 115, 354 S.E.2d 696 (1987).

In another death claim, a widow filed a workers’ compensation claim against her husband’s employer. The husband, Mr. Chadwick, was employed as a meat cutter in a packing plant of the employer. While engaged in his regular work activities, Mr. Chadwick was shot and killed by a fellow employee. The Administrative Law Judge accepted the finding of a Fulton County Superior Court jury and found the co-worker to be insane at the time of the shooting. The Court of Appeals, under the any evidence standard of review, found these facts to be supported. There was no doubt that the death was “in the course of” the employment, however, the case was defended that it did “not arise out of” the employment. This was a case of first impression in the Georgia Court of Appeals and after reviewing foreign case law, the Court found that this case was compensable. Specifically, they held that because the insanity was unknown to the employer, the injury and death arose out of and in the course of employment, thereby allowing the employer to claim the Exclusive Remedy Provision protections. Of course, this case leaves open the question as to what would have happened if the employer was aware of the insanity of the perpetrator and perhaps more importantly, the potential violent affects of this insanity. 

B. Fights 

In Knight v. Gonzalez, 181 Ga.App. 468, 352 S.E.2d 646 (1987), it was held that wilful acts which are directed against an employee by a co-worker for purely non-worked related personal reasons, would not be compensable under the Workers’ Compensation Act and the employer would not have the protections of the Exclusive Remedy Provision to prevent a tort claim. In this case, the Claimant filed a tort action against the co-employee for personal injuries sustained during a fight with the co-employee. The Defendant filed a Motion for Summary Judgment on the grounds that the tort action was barred by the Exclusive Remedy Provision of the Workers’ Compensation Act. The Court of Appeals found that there were two (2) conflicting versions concerning the altercation between the Claimant and Defendant. The Claimant contended that the fight was as a result of an argument over a car stereo system which he had sold to the Defendant, while the Defendant testified that the fight was over the Claimant’s work performance. Each party also claimed the other party was the aggressor in the altercation. Applying the any evidence standard to this case, the Court found that the Administrative Law Judge was supported by some evidence in finding that the fight arose out of an argument entirely personal, specifically, regarding the sale of the car stereo such that the accident did not arise out of and in the course of employment. For this reason, the case was not compensable under the Workers’ Compensation Act and the Claimant was allowed to move forward with his tort action.

In the City of Atlanta v. Shaw, the Court of Appeals found that the injury was not compensable. In that case, the Claimant, a water plant operator employed by the City of Atlanta, brought a workers’ compensation claim for injuries which were sustained during a fight with a co-worker. Here the test was applied as to whether the fight occurred for reasons personal to the Claimant. The Court of Appeals found in reviewing the record, there was no evidence at all to support that the fight was anything but entirely personal. There was a history of personal animosity between the two (2) workers and the Court basically found that this fight would have occurred just as likely outside of the employment arena as in the employment arena.  City of Atlanta v. Shaw, 179 Ga.App. 148, 345 S.E.2d 642 (1986).

C. “Accidental Injuries” 

In Metropolitan Life Insurance Company v. Coney, 102 Ga.App. 155, 115 S.E.2d 633 (1960), several co-workers were driving in an automobile as a function of their employment. The Claimant was riding in the back of the automobile and was having a heated discussion with the co-worker and driver of the automobile regarding matters not related to their employment. The driver of the automobile became angered and slammed on the brakes as he no longer wished to drive with these passengers. As a result of slamming on the brakes, the Claimant incurred a whiplash injury. Here the Court of Appeals found that the Claimant/passenger, did not cease being in the course of his employment because he engaged in a conversation which angered the driver, thereby causing the driver to be negligent resulting in an injury to the Claimant. The Court specifically stated “that the accident results were negligently induced by anger of the co-employee makes it no less an accident occurring within the scope of the employment, than if it is otherwise so.” As such, in this case, the Court of Appeals found that while a person’s conversation angered the driver, the resulting injury was still compensable. 

However, in Wall v. Phillips, the Court of Appeals found the injury to be compensable and applied the Exclusive Remedy Provision. There, the employee claimed that a plant nurse had prescribed pain medication without proper authorization and had sent her back to work. Reportedly, after returning to work, the Claimant aggravated her physical injury. The Court found that the injury arose out of and during the course of employment. It was not due to an intentional tort committed by the plant nurse.  Wall v. Phillips, 210 Ga.App. 490, 436 S.E.2d 517 (1993).

D. Sexual Harassment/Assaults 

Unfortunately, sexual assaults and rapes are also on the increase in employment settings. The Georgia Court of Appeals has specifically found that where the circumstances of the employment are such that there is an increased risk of sexual assault and the assault was not personal, then such an assault is compensable under the Workers’ Compensation Act. 

In Insurance Company of Alabama v. Wright, 108 Ga.App. 380, 133 S.E.2d 39 (1963), the Court of Appeals found that the Claimant’s rape arose out of and in the course of her employment and was compensable. The Claimant was employed as a manager of a “pick-up station” of the employer laundry company. On the date of the incident, the Claimant was alone on the premises when an alleged customer entered the property, forced her a gunpoint to a secluded part of the property and raped her. The Court found that the injuries sustained by the employer were the result of a wilful criminal assault. 

In this particular case, there was no misconduct on the part of the Claimant and there was absolutely no question as to whether there was any prior personal motivation or animosity between the Claimant and her assailant. There was no doubt that the injury occurred within the course of her employment and the only question was whether the injury arose out of her employment. In other words, was there a causal connection between the conditions of her employment and the injury received? The Court found that the employee had been exposed to certain “causative dangers” by the character and nature of her employment and, therefore, the case was compensable.

More recently, the Georgia Court of Appeals has found a sexual assault not to be compensable. Where an employee can prove that they were equally exposed to the hazards of sexual assaults outside of her employment and that the risk of sexual assault was unconnected with the responsibilities of the employment, the employee may be able to successfully pursue a tort action. See Kennedy v. Pine Land State Bank, 21l Ga.App. 375, 439 S.E.2d 106 (1993). In this case, the Claimant was sexually assaulted by a member of the employer’s Board of Directors. The Court of Appeals found that the injury was personal to the Claimant and could not be traced to the employment as a contributing factor. The case was not compensable under the Workers’ Compensation Act.

In Murphy v. ARA Services, Inc., 164 GA.App. 859, 298 S.E.2d 528 (1982), the Claimant brought a workers’ compensation case against her supervisor alleging that from the first date of her employment, the supervisor began to sexually molest and abuse her, threatening that she would be terminated if she did not have sexual intercourse with him. The activities took place entirely only during the hours that the Claimant and supervisor were on duty. Before the Claimant had been hired, it was proven that the employer, ARA Services, had actual knowledge that the same supervisor had physically and verbally abused other female employees during working hours at their place of employment. Despite the fact that repeated complaints were made to ARA about this supervisor, ARA allowed him to continue to supervise female employees.

The Claimant initially brought assault and battery, intentional infliction of emotional distress and negligence charges against ARA for negligent retention of an employee. The Trial Court granted ARA’s Motion for Summary Judgment concluding that this case was compensable under the Workers’ Compensation Act and was barred by the Exclusive Remedy Provision. The Claimant appealed the granting of summary judgment. The Court determined that the overriding question was whether the supervisor’s actions were entirely personal and, as such, did not arise out of her employment. The Court found that there was no evidence that the supervisor’s extremely inappropriate behavior was because of any work-related dispute or altercation arising from the performances of her duty for the employer. 

The Court found that the offensive touching, sexual propositions, demands and assault and batteries were as a result of the supervisor’s “own very personal reasons.” The Court noted that “it would be absurd to think that any of the foregoing acts and misconducts alleged by the Claimant were done by the supervisor either in fulfillment of his duties or to benefit of the employer’s cafeteria food services.” The Court went on to distinguish this case from other felonious assault cases where the conditions under which the employee must perform the duties of his employment are “particularly conducive to the eventuality which did occur” by increasing the risk of attack. The Court found that cafeteria work did not produce any particular risk of assault which had been contemplated in the compensable felonious assault cases. As such, the Court found that this was not a compensable workers’ compensation case as it arose strictly out of personal reasons. Therefore, the employee was able to sue the employer and the supervisor in tort.

In Cox v. Brazo, the Court of Appeals addressed another sexual harassment claim. In Brazo, the manager of a Krystal fast food restaurant hired Cox to work the counter. Allegedly, Brazo made lewd and obscene comments and gestures towards Cox, repeated sexual advances, and placed his hands on private areas of her body and on one occasion, dropped his trousers in front of her. These behaviors took place during working hours at Krystal restaurant while both were on duty and continued until Cox resigned. Cox then filed a tort claim alleging various counts. Brazo’s supervisor had testified that prior to Cox’s employment at Krystal’s, Brazo’s superiors had reports of incidents of similar behavior to other female employees of Krystal during working hours previously committed by Brazo. Cox’s tort actions were dismissed on summary judgment based upon the Exclusive Remedy Provision of the Workers’ Compensation Act. 

The Court of Appeals found that the lower courts had erred in granting summary judgment on the assault and battery charges as being barred by the Workers’ Compensation Act. Specifically, the Court of Appeals found this activity was not an accident or injury arising out of or in the course of employment as it was entirely personal to the supervisor and had nothing to do with the work environment. As such, the Claimant was allowed to pursue non-workers’ compensation tort remedies.  Cox v. Brazo, 165 Ga.App. 888, 303 S.E.2d 71 (1983).

In Rogers v. Carmike Cinema’s, Inc., 21l Ga.App. 427, 439 S.E.2d 663 (1993), the Claimant, a former employee, sued the employer for actual and punitive damages due to alleged sexual harassment by company officers and employees. According to the Claimant’s complaint, she endured daily harassing conversations involving sexual innuendo and overtures, as well as direct confrontations regarding sexual favors from the employer’s officers and other employees. She further claimed that she was constantly touched, hugged, fondled, and otherwise sexually harassed against her will. The employer, along with other defenses, raised the Exclusive Remedy Provision of the Workers’ Compensation Act alleging that the case should be denied in tort. Based upon the lower Court’s record, the Court of Appeals found that these incidents were entirely personal to the Claimant and had no connection to the Claimant’s work.

As the above cases reflect, the overall test as to whether an assault, sexual harassment, or even murder is going to be a compensable workers’ compensation claim will depend upon whether the Act directed against the employee was for strictly personal reasons. If the Court finds that the wilful act was strictly personal, then the claim is not compensable under the Workers’ Compensation Act and the employer will not have the protections of the Exclusive Remedy Provision. See above cited cases; see also, O.C.G.A. § 34-9-1(4); see also Francis v. Liberty Mutual Insurance Company, 95 Ga.App. 225, 97 S.E.2d 553 (1957).

E. Can The Assailant File A Claim? 

Under Georgia law, if the injured worker is the assailant or “aggressor,” then the injured worker is not entitled to workers’ compensation benefits. O.C.G.A. § 34-9-17(a) specifically provides “no compensation shall be allowed for an injury or death due to the employee’s willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injure another. . .”. See also, Scott v. Travelers Insurance Company, 49 Ga.App. 157, 174 S.E.2d 629 (1934). 

The “aggressor rule” has been found to apply in various situations. Where a Claimant began wrestling with his foreman, and as a result of the wrestling match was injured, the Claimant was found to be the aggressor and was not entitled to receive workers’ compensation benefits. See American Fire & Casualty Company v. Gay, 104 Ga.App. 840, 123 S.E.2d 287 (1961). Additionally, when one (1) employee illegally shot a gun at another person and a third person then shot and killed that employee, that employee’s alleged workers’ compensation claim was denied as the employee was found to be the aggressor. See Liberty Mutual Insurance Company v. Reed, 56 Ga.App. 68, 192 S.E. 325 (1937).

It should be noted that the “aggressor” under the Workers’ Compensation Act is not necessarily required to issue the first physical attack. Extreme harassment, the use of “fighting words” and other outrageous behavior may be enough to be found to be the aggressor in a fight situation. In Kimbro v. Black & White Cab Company, 50 Ga.App. 143, 177 S.E. 274 (1935), the Claimant was a taxi cab driver employed by the Defendant company at the time he was injured. The Claimant violated an unwritten rule of the cab drivers by taking a portion of a fare out of his turn, and “hot words ensued.” During the course of the argument, the Claimant allegedly called the other driver a “f—- liar.” At this point, the driver then hit the Claimant knocking him down to the pavement and sustaining injuries. Under the any evidence standard of review, the Court of Appeals found that there was sufficient evidence in the record to support a finding that the Claimant’s use of “fighting words” was extreme as to turn the Claimant into the aggressor such that he did not suffer a compensable workers’ compensation claim. It should be noted that this case was decided in 1935 and, as such, the “strong language” used might no longer be found to be quite as offensive given today’s current society.

An exception to the aggressor/assailant defense is where the aggressor is using reasonable and necessary force in an effort to protect his employer’s property and is, thereby, injured. The aggressor defense will not be used to prevent that injured worker from receiving workers’ compensation benefits. See Scott v. Travelers Insurance Company, 49 Ga.App. 157, 174 S.E. 629 (1934), where the Claimant was found not to be the aggressor for purposes of the Workers’ Compensation Act when he had intervened using reasonable force in the protection of his employer’s property. Specifically, the Claimant instructed a co-worker not to use a particular machine. As the Claimant approached the co-worker, the co-worker shoved him and began assaulting him. Specifically, the Court found that “. . . . in some cases, an active intervention on the part of an employee may be for the protection of his master’s property, and in such cases, he would not be guilty of assault so as to label him an aggressor.”

F. Horseplay 

Whenever an altercation occurs, an employer should take care to also consider whether the injury occurred as a result of “horseplay.” Horseplay which occurs between co-workers which results in an injury is not compensable. See Bibb Manufacturing Company v. Cowan, 85 Ga.App. 816, 70 S.E.2d 386 (1952); see also, O.C.G.A. § 34-9-17. It should be noted that a non-participant employee who is injured as a result of a co-worker’s horseplay has suffered a compensable workers’ compensation claim.  Baird v. Travelers Insurance Company, 98 Ga.App. 882, 107 S.E.2d 579 (1959).

IV. Recognizing the Red Flags: Identifying Risk Factors for Harassment and Violence in your Office 

Any employer who has concerns regarding the safety of their premises and/or their employees should contact local law enforcement and/or a private security company which are experts in the area of risk assessment and the prevention of workplace violence and harassment. In addition, local law enforcement should be involved in any violent situation of which the employer has become aware.

The employer should perform an initial assessment or hire an appropriate company to perform such an assessment in an effort to determine whether the workplace is at risk for potential violence. Certain factors obviously increase the potential risk of stranger violence such as the hours the employer is open, whether there is an exchange of money or other valuable items available at the location, whether the employer has customers who would likely have backgrounds of violence, whether there are any employees who have backgrounds of violence or inappropriate behavior which can lead to violent outbreaks, the location of the employer, and the security which is available at the employer’s location.

The overall community within which a business is located should also be considered in attempting to identify red flags. Is the community one which includes lots of crime in general? Is the community doing well from a social-economic point of view or is it suffering? Is unemployment high or low? Is there a high incidence of drug and alcohol related attacks on the general public? 

In addition to viewing the general community, the employer should keep in mind its own course of conduct. For example, if the employer is planning a large lay off or downsizing, how will employees react? How significant will this lay off or downsizing be to the employees? If it is known that they will easily be able to find other employment, then the risk of violence may be low, however, if these are longtime employees who will literally lose their homes and families over losing this job, the potential risk for violence greatly increases. Today, many employers, in large downsizing and lay offs are providing career services to their employees, including limited additional training, help with resumes, help with how to properly interview for a job and have even provided on site job fairs. While much of this is offered as a reward to its employees for hard work and is also offered by generous employers, employers should not underestimate the potential benefit of helping its employees go through this transition period in a polite and helpful manner such as to limit the animosity which “lay off” employees may feel toward the employer. As has been evidenced with numerous situations in the past, disgruntled employees may leave and return only to cause serious injury and death to supervisors and co-workers.

Management should be trained by their employers to watch for and be aware of certain signs or problems within the work environment. Inappropriate behavior by supervisors and employees should immediately be dealt with in an appropriate manner. Intimidating or threatening behavior should not be allowed within a work environment. Employers should have a system in place of which all employees are made aware to report any concerns of violence or harassment within the workplace. These reports should be taken seriously and dealt with appropriately by the employer. As is noted above, where appropriate, an employer should immediately involve local law enforcement or its in-house security. Additionally, employees should be made comfortable reporting concerns for their own safety which may involve a non-employee. Many times in a domestic violence situation, a battered wife was killed at the workplace by her estranged husband. Some of these cases could possibly have been prevented if the employer had been made aware of the husband’s situation and the fact that the employee did not wish to see that person.

An employer should not be reactive to violence and harassment in the workplace. It is necessary that they become pro-active by obtaining an assessment of any risk they may have and responding to it appropriately. While this may prove to be an expensive proposition, not doing so may prove to be even more costly.

V. Five Steps You Can Take to Minimize the Risk of Harassment and Assault 

  1. Employers should have an assessment performed by experts, such as local enforcement and/or private security consulting companies. This assessment should include recommendations as to how to prevent internal and external violence and harassment situations from occurring. Additionally, it should also include how any given situation should be responded to so that physical injury and property damage may be kept to a minimum.
  2. Employers must have a system through which employees feel comfortable reporting concerns of internal and/or external violence and/or harassment. The employer must then respond appropriately to these concerns.
  3. The employer should have a plan in place of which all employees are made aware to deal with emergency situations. Unfortunately, in today’s society, employers should not only have “fire drill” type evacuations planned, but must be prepared to address the possibility of extreme intentional violence being injected into the workplace. These emergency plans must be thought out and reviewed prior to the situation arising.
  4. An employer must consider providing private security at its facilities. This may range anywhere from locked doors, bullet proof glass, metal detectors, surveillance equipment, unarmed security personnel and even armed security personnel. Again, this will depend entirely upon the employment situation and the community in which it is based.
  5. One of the most simple methods of discouraging both internal and external violence is to welcome local law enforcement into the employer’s facilities. In the restaurant industry this is commonly accomplished by providing free coffee or discounts on food items to local law enforcement. While this often is the basis for jokes regarding law enforcement, it would appear to be common sense that a restaurant in which four (4) police officers are eating lunch is much less likely to be robbed then one which has no officers present. This example should be utilized by all employers. While all employers do not provide food and other services which law enforcement may be have an interest in, they can make sure that law enforcement is invited to drive around their property, come in and visit, and generally just have accessibility to the employer’s place of business. Routine visits by law enforcement to the employer’s property may help reduce the risk of both internal and external violence. An added benefit to this type of relationship with law enforcement is that even if the officer is not present at the beginning of the violent event, the fact that they have been to the employer’s premises on numerous prior occasions will dramatically increase their ability to locate the employer in an emergency situation.

Along this same line of thinking, some employers have, where feasible, established “courtesy offices” for their local law enforcement. In jurisdictions where officers are often far from their home base, employers have provided on site shelters to local law enforcement which generally include a restroom, access to coffee and water. Additionally, this area generally provides a phone with local service only, as well as heat and air conditioning. Again, this is simply a way of encouraging the presence of local law enforcement at the employer’s location.

William N. Anderson received his BA in 1990 from the University of North Carolina at Charlotte. He received his Juris Doctor from Mercer University in 1993. While in law school, he was a member of the law review (1991-1993), received the Dean’s Public Service Award, and was the Co-Chair of the 1993 National Conference of Law Reviews.

He is a partner with the law firm of Hamilton, Westby, Antonowich & Anderson, where his primary area of practice is workers’ compensation defense. Mr. Anderson often speaks to employers, insurers, and self-insurers regarding workers’ compensation issues. He is the co-founder of GA WorkersComp, and may be reached at bill@gaworkerscomp.com or (404)-872-3500.