As we noted last week, workplace violence is a hazard subject to occupational health and safety regulation even though it's not expressly mentioned in either OSHA or Canadian provincial OHS laws. The duty to guard against the risk of violence in the workplace is rooted in the so called general duty clause of the OSHA/OHS statute.

But the failure to protect employees against violence in the workplace can also lead to liability under other laws. Let's take a look at five of these laws.

1. Negligence

Those of you who read the SafetyXChange series about liability of employers for traffic accidents caused by employees using cell phones while driving on company business [view May 15th issue] may recall that under the law of torts every person has a duty to use reasonable care to protect against foreseeable risks. Failing to prevent an incident of workplace violence could lead to negligence liability to the extent that the employer saw or should have seen the incident coming. Trial lawyers use two main negligence theories to hold employers responsible for workplace violence:

Negligent Hiring: If the person who engages in violent behavior had a record of attacks, the employer may be held liable for hiring him in the first place. Example: A rental car employee rapes a co-worker. The rental car company hadn't checked the attacker's background before hiring him. If it had, it would have discovered that the man had served three years in prison for an armed robbery conviction. The jury found the company guilty of negligence and awarded the victim $750,000.

Negligent Retention: If the attacker has engaged in previous incidents of violence with co-workers or customers, keeping him on the payroll may lead to negligence liability for subsequent attacks. Example: A railroad worker shoots his supervisor in the kneecap after being reprimanded for eating during his shift. The worker had made threats against other co-workers but hadn't been disciplined. The supervisor sued the company for negligently retaining the worker and won $3.5 million [Smith v. Amtrak, 865 F.2d 467 (2d Cir. 1987)].

2. Vicarious Liability

A worker who engages in workplace violence might be considered an agent of the employer for whom the employer is legally responsible. This is called vicarious liability, or to use the legal term, respondeat superior.

3. Breach of Contract

In Canada, some courts have held that employers have an implied contract to treat workers with respect and dignity so they can do their job. A victim of workplace violence might be able to claim that an employer violated this contractual duty.

4. EEOC/Human Rights Discrimination

The U.S. and Canada protect employees against discrimination in the terms and conditions of employment on the basis of race, ethnicity, gender, religion, disability, family status and national origin. Canada and a few U.S. states also ban sexual preference discrimination. If victims of violence are members of a minority protected by the EEOC/human rights laws, they might be able to claim that the employer's failure to protect them against violence was illegal discrimination. Example: If an employee is subjected to threats or attacks because he's Muslim, he could argue that the employer's failure to protect him was discrimination.

5. Infliction of Mental Distress

U.S. and Canadian employers are under a duty to safeguard employees against not only physical but psychological violence. Thus, harassment and intimidation can be the basis of liability even if nobody actually touches the victim. If the complained of conduct is "outrageous", the victim can sue the employers for intentional infliction of mental distress. Example: For three and a half years, a Canadian supervisor, a large man with a loud voice, bullies a smallish employee he knows to be mentally frail. He spews insults and threats like "I'll bash your head in," occasionally brandishing a hammer for effect. The employee has a mental collapse and sues the company for infliction of mental distress. She wins $35,000 [R. v. Boothman, [1993] 3 F.C. 381 (Fed. T.D.)].

Conclusion

Next week is Labour Day. We'll resume our discussion in two weeks by looking at employer efforts to combat violence in the workplace and the practical shortcomings of a zero tolerance policy.

HISTORIC MOMENTS IN WORKPLACE SAFETY

The OC Transpo Massacre

By Glenn Demby, Esq.

OC Transpo sign

Pierre Lebrun was considered a "nice guy" by most of his co-workers at OC Transpo, the mass transportation authority of Ottawa. But Pierre's work environment was far from healthy. Two of his colleagues were giving Pierre a hard time about his speech impediment. What started as teasing had turned to harassment. And Pierre didn't like it. One day a fight ensued. Pierre was fired. The union contested the termination and won reinstatement. Pierre agreed to take anger management counseling.

But the situation got worse. Pierre left OC Transpo. And then he snapped. At 2:30 PM, on April 6, 1999, Pierre, an avid hunting enthusiast, showed up at OC Transpo headquarters armed with a Remington 760 .30-06 rifle and his pockets stuffed with ammunition. "It's judgment day!," he shouted as he entered the building. Before the rampage had ended, Pierre fatally shot four employees and seriously wounded another. He then turned the gun on himself.

Pierre Lebrun didn't pioneer workplace violence in Canada. On the contrary, Canada has and continues to have more than its fair share of incidents. But Pierre Lebrun and the OC Transpo massacre took the issue to the front of newspapers, public awareness and regulatory agendas across the country.

OSHA & Courtesy Inspections

Thanks to the SafetyXChange members who wrote to point out the errors in last week's "Real Life OSHA Encounter":

1. OSHA Doesn't Do Courtesy Inspections

• OSHA compliance officers can not do a courtesy inspection. By federal law, they have to cite any violations found at a firm, otherwise, should an employee get injured by any of those violations found, OSHA could be held liable including the safety officer who pointed them out.
• OSHA, especially OSHA state plans, have consultation & educational services whereby they will go out and do a courtesy inspection (except Nevada) and not only a hazard assessment would be done, but an evaluation of the company's records, training programs, written programs and just an overall safety & health management system evaluation. Michigan OSHA, known nationally for its proactive help in the workforce, is a prime example of these free and sought after services. There are no penalties and enforcement is not told about the on-site visit unless the employer refuses to abate a serious violation that may have been found. The on-site visit could lead to programs to help the employer & employees by providing consultation, education and training services as how to maintain safe working conditions; accommodate safety awareness training to include assistance in developing safety programs; and prepare employers to recognize, abate, and prevent the recurrence of hazardous working conditions; and risk management.

For further information, contact your local OSHA consultation & training office, or in Michigan by calling (517) 322-1809.

Rob Stacy
Safety Manager
Southern Nevada Health Region

2. Nobody Gets a Five-Year Exemption

Another member pointed out that there's "no way" OSHA would give a five-year exemption from an inspection. "The best you can get," he writes, "is a one-year exemption if you're in VPP." Incidentally, VPP stands for Voluntary Protection Program - the OSHA program in which employers voluntarily subject themselves to more rigorous health and safety standards and, if OSHA approves, receive an official designation - Merit or Star.

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