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Your location: Human Resources >> off duty

Mr. Cunningham's Outline On Off-Duty Issues And Crime In The

Workplace; OSHA Issues And Domestic Violence
Updated on 2004-01-17

Employee Violence: Materials

Off-Premises Issues:

1. A Focus On Violence Inside Of and Outside Of The

Workplace

2. Emerging Employer Obligations

I. Introduction.
II. Domestic Violence: Background On Workplace Violence.
III. Violence And The Workplace: The New Legal Connection. Emerging
View: Corporate Responsibility. Department of Labor Enforcement Trends.
IV. Under What Circumstances Could An Employer Have A Duty To Prevent
Domestic Violence From Occurring On Its Premises?
V. Employer-Obtained Restraining Orders.
Today's Date:
Wednesday,
2/17/2010
I. Introduction.

A. Off-Premises Conduct Of Employees And

Non-Employees.

Traditional Analysis

Privacy Issues.

B. Historical Lack Of Responsibility For 3rd

Criminal Act.

II. Domestic Violence: Background On Workplace Violence.

A. Homicide, the most extreme form of workplace violence,
is the second leading cause of death in US workplaces.
There were 6,588 deaths in 1994;
homicides accounted for 1,071 of those deaths, or 16 percent.
(go to top of page)

In 1992, the Bureau of Labor Statistics

reported 43 percent of all women who died
on the job were victims of violence,
compared to 18 percent for men. A study
done in Texas found that 53% of women who
suffered work-related fatal injuries were
murdered, as compared with 13% of the
men; other studies confirm that at least 40%

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of all female work place fatalities are

murders. In 1992, the US Surgeon General
ranked abuse by husbands and partners as
the leading cause of injury or death to
women. From 1992-94, 17 percent of the
attackers of women in the workplace were
current or former husbands or boyfriends.
This number is growing: It was closer to 5
percent from 1987-1992. Though women are
less likely to be murdered at work than men,
women are about five to six times more
likely than men to be the victim of a crime
committed by an intimate.
(go to top of page)

Most such criminal acts do not result in

death. According to DOL statistics, 21,300
workers were injured in nonfatal assaults in
the workplace in 1993 and women were
victims in 56 percent of these assaults. The
Department of Justice stated that between
1987 and 1992 about 1 million individuals
each year were assaulted at work. An annual
breakdown is: 615,160 simple assaults,
264,174 aggravated assaults, 79,109
robberies, and 13,068 rapes.
(go to top of page)
B. "A survey of Fortune 1000 companies,
conducted for Liz Claiborne, Inc. in 1994,
found that:

4 out of 10 corporate leaders surveyed were personally

aware of employees in their companies who have been
affected by domestic violence;
nearly half (49 percent) said that domestic violence had
a harmful effect on their company's productivity;
forty-seven percent said it had a harmful effect on
attendance;
forty-four percent said it had a harmful effect on health
care costs;
one-third believed domestic violence affected their
balance sheet; and
two-thirds agreed that a company's financial
performance would benefit from addressing the issue of
domestic violence among its employees.

(go to top of page)

Only 12 percent said that corporations should

play a major role in addressing the issue.
Yet, over half (58 percent) of the 100 senior
executives who were interviewed sponsored
domestic violence awareness or survivor
support programs, and nearly three quarters
offered domestic violence counseling or
assistance programs. Forty-three percent
said they would definitely respond to the

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problem in the future". Source: Women's

Bureau.
(go to top of page)

III. Violence And The Workplace: The New Legal

Connection.

A. Traditional View: Third-party criminal conduct.

Lack of foreseeability.
B. Emerging View: Corporate Responsibility.

1. The Department of Labor And General

Duty Clause.

The General Duty Clause

(Section 5(a)) of the
Occupational Safety and Health
Act of 1970 requires employers
to provide a safe and healthful
working environment. Employers
can be cited by OSHA under the
General Duty Clause if there are
recognized hazards of workplace
violence and nothing is done to
prevent or abate them.
(go to top of page)

2. History: 1992.
The DOL stated to an employer in 1992:
"Although currently there are no specific
Federal OSHA standards to address these
problems, the Federal Occupational Safety
and Health Act (OSH Act), in Section 5(a)(1),
provides that "each employer shall furnish to
each of his employees employment and a
place of employment which are free from
recognized hazards that are causing or are
likely to cause death or serious physical
harm to his employees." In a workplace
where the risk of violence and serious
personal injury are significant enough to be
"recognized hazards," the general duty
clause would require the employer to take
feasible steps to minimize those risks. Failure
of an employer to implement feasible means
of abatement of these hazards could result in
the finding of an OSH Act violation.
(go to top of page)

On the other hand, the occurrence of acts of

violence which are not "recognized" as

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characteristic of employment and represent

random antisocial acts which may occur
anywhere would not subject the employer to
a citation for a violation of the OSH Act.

Whether or not an employer can be cited for

a violation of Section 5(a)(1) is entirely
dependent upon the specific facts, which will
be unique in each situation. The
recognizability and foreseeability of the
hazard, and the feasibility of the means of
abatement are some of the critical factors to
be considered."
(go to top of page)

3. History: 1994.
On November 7, 1994, a meeting took place
between OSHA officials and the workplace
violence labor coalition. The organizations
personally represented included AFSCME,
SEIU, Laborers', 1199, and other union
officials. Also present were representatives
from the Women's Bureau of the Department
of Labor and OSHA.

The purpose of the meeting as stated by the

labor coalition was to "put OSHA on the
record recognizing workplace violence".

Consensus was reached on the following

points:
*OSHA will make it a priority that employers
follow the appropriate recordkeeping and
reporting requirements for workplace
violence incidents.

*OSHA will issue general guidelines which

will be developed with the participation of
business and labor communities.

*OSHA will issue guidance to its compliance

officers on investigations and inspections
regarding workplace violence.

*OSHA and its state counterparts will provide

consultative services to employers requesting
assistance.

*OSHA will provide training to its compliance

officers.

*OSHA officials agreed to concentrate on

comprehensive prevention programs rather

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than specific abatements.

*OSHA officials agreed to educate the public

as to the different types of workplace
violence in proportion to their frequency and
severity.

*OSHA officials agreed to continue working

with other federal agencies to identify the
workplace violence hazards and their
reduction or prevention as information
becomes available.
(go to top of page)

4. History: 1996.
In 1996, the DOL took the further step of
issuing guidelines on workplace violence and
employers' obligations in specific industries.
"Guidelines for Preventing Workplace
Violence for Health Care and Social Service
Workers" and draft guidelines for night retail
establishments were issued.
(go to top of page)

The DOL is, therefore, focusing on high-crime

businesses. DOL has taken the position that,
if an employer is in a high-crime business,
that employer must take affirmative steps to
reduce the possibility of injury to its
employees.
(go to top of page)

For example, a night retail establishment is

more likely to be the target of an armed
robbery than a manufacturing facility.
Accordingly, the night retail establishment
has special duties. According to DOL, these
include many areas. In the area of
recordkeeping alone, DOL stated that
employers in night retail establishments
must keep:
-OSHA Log of Injury and Illness (OSHA 200).
OSHA regulations require entry on the Injury
and Illness Log of any injury that requires
more than first aid, is a lost-time injury,
requires modified duty, or causes loss of
consciousness. (This applies only to
establishments required to keep OSHA logs).
Injuries caused by assaults, which are
otherwise recordable, also must be entered
on the log. A fatality or catastrophe that
results in the hospitalization of 3 or more
employees must be reported to OSHA within
8 hours. This includes those resulting from
workplace violence and applies to all
establishments.
(go to top of page)

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-Medical reports of work injury and

supervisors' reports for each recorded assault
should be kept. These records should
describe the type of assault, i.e., unprovoked
sudden attack; who was assaulted; and all
other circumstances of the incident. The
records should include a description of the
environment or location, potential or actual
cost, lost time, and the nature of injuries
sustained.
(go to top of page)

-Incidents of abuse, verbal attacks or

aggressive behavior -- which may be
threatening to the worker but do not result
in injury, such as pushing or shouting and
acts of aggression towards customers --
should be recorded, perhaps as part of an
assaultive incident report. These reports
should be evaluated routinely by the affected
department.

-Minutes of safety meetings, records of

hazard analyses, and corrective actions
recommended and taken should be
documented.

-Records of all training programs, attendees,

and qualifications of trainers should be
maintained.
(go to top of page)

As part of their overall program, employers

should evaluate their safety and security
measures. Top management should review
the program regularly, and with each
incident, to evaluate program success.
Responsible parties (managers, supervisors,
and employees) should collectively
reevaluate policies and procedures on a
regular basis. Deficiencies should be
identified and corrective action taken."

Accordingly, while the majority of employers

are not subject to the guidelines, it is clear
that the trend is to increase the legal
obligations of employers to prevent
workplace violence. The DOL, for now, is
focused on those industries where violent
crime is a known quantity: for example,
almost two-thirds of the nonfatal assaults in
one recent year occurred in nursing homes,
hospitals, and establishments providing
residential care and other social services.
(go to top of page)

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IV. Under What Circumstances Could An Employer

Have A Duty To Prevent Domestic Violence From
Occurring On Its Premises?

A. The General Duty Clause.

"each employer shall

furnish to each of his
employees employment and
a place of employment
which are free from
recognized hazards that are
causing or are likely to
cause death or serious
physical harm to his
employees."
(go to top of page)

B. California Labor Code Section

6402:

"No employer shall require,

or permit any employee to
go or be in any
employment or place of
employment which is not
safe and healthful."
(go to top of page)

C. California Labor Code Section 6403:

"No employer shall fail or neglect
. . . (t)o do every other thing
reasonably necessary to protect
the life, safety, and health of
employees."
(go to top of page)

D. California Labor Code Section

6401.7: Injury Prevention
Program.
(go to top of page)

E. Implied Or Express Contractual

Commitments Of Safety
F. The Standards Evolving In The
Law Of Premises Liability.

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Most employers are also landlords or

landowners; if not, they are significant
tenants. In any of those capacities, the
employer controls the premises. An employer
has various duties to ensure the reasonable
safety of individuals who come to its
premises. While duties to keep a safe
workplace are often defined by statutes, such
as the California Labor Code, duties to
visitors to the employer's premises are not
often defined by statute.
(go to top of page)

The duties of an employer to visitors on its

premises are defined by negligence law, and
other areas of tort law. Thus, in the event a
visitor is injured on an employerís premises,
the important question will be: did the
employer take reasonable steps to ensure
the safety of the visitor? In the past, if a
crime occurred on an employer's premises,
the typical defense was simply that no
employer could reasonable foresee an act of
violence, particularly by a non-employee,
and thus the employer would not be liable for
those non-foreseeable acts.
(go to top of page)
The courts, however, are not convinced
anymore that crime is not foreseeable. Thus,
the courts can be convinced that in a
particular case, the employer should have
foreseen an act of violence and thus should
have taken better precautions to prevent an
injury to a visitor (and its employees also)
from occurring on its premises.
(go to top of page)
In a January, 1997, the California Supreme
Court wrestled with a question in this area of
law. A customer was in a KFC in which there
was no history of armed robbery. At
gun-point, a KFC clerk was told to turn over
the store's money. The clerk stalled; the
gunman held the gun to the customerís back,
and the KFC clerk relented and turned over
the money. The gunman fled and the
customer sued. The Court held that KFC did
not have a duty to just turn over the money.
(go to top of page)
In reaching that conclusion, however, the
Supreme Court discussed the circumstances
in which a business in charge of a premises
can be held liable for injuries to visitors. The
Supreme Court said:

-"a business proprietor is not an insurer of an

inviteeís safety. There is a requirement,
however, that reasonable care be taken for

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their safety, and liability exists for injuries

resulting from a breach of that duty of
reasonable care."
(go to top of page)

-"Since the possessor is not an insurer of the

visitor's safety, he is ordinarily under no duty
to exercise any care until he knows or has
reason to know that the acts of the third
person are occurring, or are about to occur.
He may, however, know or have reason to
know, from past experience, that there is a
likelihood of conduct on the part of third
persons in general which is likely to
endanger the safety of the visitor, even
though he has no reason to expect it on the
part of any particular individual. If the place
or character of his business, or his past
experience, is such that he should reasonably
anticipate careless or criminal conduct on the
part of third persons, either generally or at
some particular time, he may be under a
duty to take precautions against it, and to
provide a reasonably sufficient number of
servants to afford a reasonable protection."
(Rest.2d Torts, §344, com. f, pp. 225-226.)
(go to top of page)
Where a warning of danger is not adequate
to protect a patron from intentional harmful
acts of a third party, a landowner must
"exercise reasonable care to use such means
of protection as are available." (Rest.2d
Torts, § 344, com. d, p. 225.) When criminal
conduct is ongoing, that duty requires that
the land-owner or occupier take such
appropriate action as is reasonable under the
circumstances to protect patrons. [citation
omitted).
(go to top of page)

-The Restatement rule continues to be the

generally accepted test of liability of a
business owner for injuries on the business
premises caused by third party criminal
conduct. A land occupier "must act as a
reasonable person to avoid harm from the
negligence of contractors and concessionaires
as to activities on the land, as well as that of
other persons who have entered it, and even
from intentional attacks on the part of such
third persons. He is required to take action
when he has reason to believe, from what he
has observed or from past experience, that
the conduct of the other will be dangerous to
the invitee, but not if there is no reason to
anticipate a problem." (Prosser & Keeton,
Torts (5th ed. 1984) Invitees, § 61, p. 428,

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fns. omitted.) (emphasis added)."

KFC v. Superior Court, California Supreme
Court, 14 Cal.4th 814 (1997). [Go To Text Of
Case]

V. Employer-Obtained Restraining Orders.

"Any employer, whose employee has suffered unlawful
violence or a credible threat of violence from any
individual, which can reasonably be construed to be
carried out or to have been carried out at the workplace,
may seek a temporary restraining order and an
injunction on behalf of the employee prohibiting further
unlawful violence or threats of violence by that
individual."
Code of Civil Procedure Section 527.8. This law does not
expand the duty to provide a safe workplace (Section
527(k)). Includes telephone calls, stalking, e-mail. Does
not include divorce cases or domestic violence (Section
529(b)).(go to top of page)

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