Workplace violence is an ongoing problem for employers of every type – one that costs employers billions of dollars each year in lost productivity, legal expenses, property damage and other costs. The problem of workplace violence can take many forms, ranging from acts or threats of physical violence, intimidation, harassment and other types of disruptive behavior.
A recent Federal court decision involving off-price retailer Marshalls illustrates the problem of workplace violence, and provides a framework for offering tips for addressing and avoiding it. While the incident in this case took place in a retail store, a similar incident could easily unfold in any type of workplace, and between any combination of individuals; employees, drivers, customers, vendors, etc. It is important that you make sure your employees know what to do and how to react in the event such an incident should arise and start to get out of hand.
The Marshalls case arose out of a melee that took place among a group of women in one of the company’s Brooklyn, New York stores in late 2013. According to the complaint, plaintiff Caroline Cort was shopping with her sister when they had words with a store employee (named Frazier), following which Frazier began to follow Cort and her sister around the store and make various threatening comments to Cort’s sister. Sometime later Frazier changed into different clothing, and continued to follow the pair. The behavior prompted Cort and her sister to complain to one store manager, and then a second manager, neither of whom took action. Thereafter, while Cort and her sister waited in line to pay, they were attacked by Frazier and two other women who apparently came to the store at Frazier’s request. Cort was badly injured in the assault.
Cort sued Marshalls under a variety of legal theories, including among others “respondeat superior” (a legal theory that under certain circumstances makes an employer liable for wrongs committed by an employee); negligence; and negligent hiring, retention, supervision and training. Marshalls moved to dismiss, and the Court granted the motion without prejudice to Cort filing an amended complaint correcting various factual deficiencies. Why did it dismiss, and what can we learn from this?
Let’s look first at why the Court dismissed. It found there was no respondeat superior liability because an employer is only liable for wrongs committed while the employee was acting on behalf of her employer. If you send an employee on an errand and she runs someone over with her car while texting on her phone, your company can be held responsible as the employee was engaged in company business at the time of the accident. If she has the same accident during her lunch break, the company is not liable. In the Marshalls case, the Court found that Frazier was not engaged in company business when she and her cohorts attacked Cort and her sister. She was a sales person, she was not a loss prevention person, using physical force was not within the scope of her employment, nor was she acting on the store’s behalf (for example, to stop Cort from shoplifting as opposed to simply harassing her and engaging her in a personal fight), and she had enlisted non-employees to participate in the attack.
The Court also found no negligence on the part Marshalls. It had a duty to protect those on its premises, but only from “reasonably foreseeable harm,” and in this case the retailer had no reason to believe that one of its employees would assault a customer. For similar reasons, the Court found no basis for Cort’s factually unsupported assertion that Marshalls knew or should have known of Frazier’s propensity for violence, and thus that it was negligent in hiring and employing her.
So, what can we learn from a case like this? First and foremost, it is important to keep in mind that if you are an employer, you have certain duties to those who come on your premises. High among these duties is a duty to make sure you carefully screen individuals you hire. While there are various federal, state and local anti-discrimination laws that restrict inquiries into whether job candidates have past arrest and criminal records, an employer’s hands are not completely tied. You should, for example, always check an applicant’s references and/or contact the applicant’s former employers to learn more about the employee and why he or she left.
Another great tool is the Internet, however checking out candidates online has its pluses and its minuses. While looking for information regarding whether a job candidate has violent tendencies, you may on the one hand find other information that may be lawfully considered in passing over the candidate (such as a picture of a male candidate groping someone). On the other hand, such a search can also yield information which might run afoul of the anti-discrimination laws outlined above if taken into consideration (such as a candidate’s sexual orientation or religion). Internet searches for information about existing employees raise similar concerns. For example, New York State has is a law that prohibits discrimination based on lawful, off-duty activities. What if you checked out a candidate and learned he is a hunter? Can you fire him because he happens to own a gun? Probably not under this law…
As for existing employees, it’s important to keep a pulse as to what is going on in the office. In particular, you should always keep an eye on employees that seem to have problems interacting appropriately with others, and where possible separate incompatible employees through shift changes, departmental changes, etc.
Screening and monitoring are only part of the suggested approach. Employers should also adopt zero-tolerance policies against workplace violence that cover not only employees, but independent contractors as well. Employers must also adopt procedures for spotting violence about to occur, and addressing it head on. Adopting policies and procedures involves more than having your lawyer draft up documents and sticking them in a file. They need to be conveyed to every employee within the company. At a bare minimum, all employees need to know what types of behaviors are unacceptable, how and to whom to report such behaviors, and the potential consequences that flow from engaging in such behaviors. Supervisory personnel need to be instructed as to what to do and how to respond if they see a potentially volatile situation unfolding, and how to properly investigate, document and respond to any complaints they may receive from subordinate employees. Given the litigious world we live in, it’s always a good idea to consult with your company’s attorneys when situations that may lead to workplace violence are brewing, or where an incident of workplace violence has reared its ugly head.
In conclusion, while your company may not be responsible for unforeseeable acts such as the assault Cort experienced during her shopping trip, the Marshalls case points out that there is indeed an obligation to act if violence is foreseeable. The best way to avoid such violence occurring is to do your homework, enact strict policies prohibiting harassment and violence of any sort, and making sure everyone knows what to do if and when someone gets out of line. While no employer is immune to the problem, as is discussed above the risk of a violent incident occurring may be substantially reduced if appropriate precautions are taken.
