Two weeks ago, we examined the roots of the legal duty of employers to safeguard employees against the threat of violence in the workplace. We saw that liability for incidents of workplace violence can be based not only on OSHA/OHS laws, but the common law, that is, judge-made law, including most notably the law of negligence, as well as on contract law and other statutes and regulations. Let's now focus on what employers can do to manage the risks of violence and the liability to which it exposes them.

The Zero Tolerance Policy

First of all, it's important to note that there are still some employers that don't recognize workplace violence as a problem or believe that "it can't happen to them." Even employers who do "get it" have struggled to come up with effective policies and safeguards to prevent it.

Employers typically use a "zero tolerance" policy to combat workplace violence. Zero tolerance generally means that employees who commit or threaten workplace violence will be subject to immediate and automatic dismissal with no second chances. Zero tolerance puts workplace violence outside the company's normal progressive discipline system. In other words, under zero tolerance, employees who engage in workplace violence get fired immediately even for a first offense. This signals that the company considers workplace violence more serious than other offenses.

Is Zero Tolerance Enforceable?

Few would argue with the logic of treating workplace violence more severely than other infractions. But adopting a zero tolerance policy isn't necessarily a no-brainer. One of the biggest obstacles is fear of antagonizing the union. In addition, "there's a widespread perception among employers, especially in unionized workplaces, that most courts and arbitrators try to strike down disciplinary actions against workers, wherever possible, even when the discipline is for a serious infraction," notes a Chicago attorney.

"This is pure myth," the attorney says. In fact, courts and arbitrators will sustain discipline if they think it's necessary to protect other employees. In the words of one arbitrator: "An employer made aware of physical violence and threats of physical violence has little alternative but to take all disciplinary steps up to and including discharge, to protect its staff from acts tantamount to workplace terrorism."

It's not hard to find cases from all parts of the U.S. and Canada upholding the immediate firing of employees for engaging in workplace violence:

U.S. Example: It was OK to fire a postal worker for "pointing his fingers, making gunshot noises and threatening to 'shoot all of the white rednecks'." The fired worker also threatened his supervisor and said that his "entire body was a weapon." A psychiatrist evaluated him and pronounced him "physically unfit for duty" and the employer's duty to accommodate him "ended when he made threats," the court said [McRae v. Potter, 2002 U.S. App. LEXIS 18853 (7th Cir.)].

Canadian Example: An Alberta company was allowed to fire an employee for pointing a pike pole at a co-worker's nose and threatening to "wring his scrawny neck," given the company's "obligation, moral and statutory, to maintain a safe workplace" [Weyerhauser Canada v. IWAW, Local 1-207, 2000 A.G.A.A. No. 65 (1998)].

Conclusion: Easy to Adopt, Hard to Enforce

Theoretically, a zero tolerance policy is enforceable, provided that firing an employee is necessary to protect others in the workplace. But as a practical approach to combating workplace violence, it has its limitations. Simply put, zero tolerance may be too inflexible to implement. Next week, in the conclusion of this series, we'll look at the practical problems of zero tolerance and how to craft a workplace violence policy that overcomes them.

AMERICA'S BLOODIEST DAY

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The Antietam Battlefield, 1862

By Glenn Demby

The attacks on September 11, 2001 claimed the lives of 3,056 people:

• 2,823 were killed the World Trade Center or aboard the two jetliners that hit the Towers;
• 189 were killed in the Pentagon and aboard American Flight 77;
• 44 met their end in Pennsylvania as a result of the crash of United Flight 93.

By comparison, approximately 2,500 Americans lost their lives during the D-Day invasion of June 6, 1944.

But 9/11 is not the bloodiest day in American history. The holder of that dubious distinction is September 17, 1862. It was on that date that Union and Confederate forces clashed on the cornfields, meadows and streams of a little crossroads town of Sharpsburg, Maryland. Before the day was done, 3,654 Americans lay dead - 2,108 Union, 1,546 Confederate.

But this conflict, known as the Battle of Antietam, is a dramatic demonstration of the potential for good to emerge from bloodshed. For it was the Battle of Antietam that delivered the Union victory President Abraham Lincoln had been waiting for to publish the Emancipation Proclamation, freeing the slaves.

Let us all recognize the opportunity represented by tragedy and do what we can to ensure that the losses of September 11, 2001 do as much as those of 1862 and 1944 to advance the cause of human freedom.

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