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© 2013 Kilpatrick Townsend April 25, 2013 Armed & Dangerous: Protecting your employees from violence Yendelela Neely Anderson, Kilpatrick Townsend & Stockton.

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Presentation on theme: "© 2013 Kilpatrick Townsend April 25, 2013 Armed & Dangerous: Protecting your employees from violence Yendelela Neely Anderson, Kilpatrick Townsend & Stockton."— Presentation transcript:

1 © 2013 Kilpatrick Townsend April 25, 2013 Armed & Dangerous: Protecting your employees from violence Yendelela Neely Anderson, Kilpatrick Townsend & Stockton Celeste Bradley, Blue Cross/Blue Shield Tennessee Waverly D. Crenshaw, Jr., Waller Lansden Dortch & Davis Sheldon W. Snipe, AT&T Services, Inc. Maria A. Audero, Paul Hastings LLP

2 THE FACTS Armed & Dangerous 2

3 2 million people are victims of workplace violence each year In 2011, homicide accounted for 17% of all workplace fatalities Homicide is the most common cause of workplace fatality in women Relatives account for most workplace violence against women Robbers account for most workplace violence against men 3

4 LEGAL LANDSCAPE Armed & Dangerous 4

5 The majority of states have no legislature regarding rights with regards to guns in/around the workplace 5

6 Armed & Dangerous 16 states (and counting) have enacted laws expressly prohibiting employers from preventing employees from keeping their guns in their locked car in the parking lot 6

7 Armed & Dangerous 6 states have enacted laws requiring employers to post signs regarding any gun restrictions 7

8 Armed & Dangerous It is unlawful in 5 states to ask employees or job applicants whether they possess a gun and/or to search employees cars for guns 8

9 Armed & Dangerous 14 states (and counting) limit the liability for employers who cannot prohibit employees from keeping guns in their locked cars in the parking lot 9

10 Armed & Dangerous Occupational Safety and Health Act (“OSHA”) –No specific OSHA standard for violence –General Duty Clause (OSH Act Section 5(a)(1)) All employers have a general duty to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm –OSHA has issued voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence in at-risk industries For-hire drivers, late-night retail establishments, healthcare and social workers Failure to adhere to the guidelines is not an automatic violation of the General Duty Clause 10

11 Armed & Dangerous Ramsey Winch v. Henry, 555 F.3d 1199 (10th Cir. 2009) –Challenge to Oklahoma bring your gun to work law –Reversed trial court ruling that gun-related workplace violence was a “recognized hazard” under the general duty clause, and, therefore, an employer that allows firearms in the company parking lot may violate the OSH Act. –Noted “an employee's general fear that he or she may be subject to violent attacks is not enough to require abatement of a hazard under the general duty clause” 11

12 TENSIONS RISING Armed & Dangerous 12

13 Armed & Dangerous Federal Limits: –“Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” issued April 25, 2012 –August 2012: EEOC announced focus on discrimination cases stemming from background checks 13

14 Armed & Dangerous State Limits: –“Ban-the-box” legislation: prohibits employers from asking about criminal convictions on an initial employment application Several states and cities have such laws –Some states have deemed it unlawful under some circumstances to refuse to hire an applicant or take adverse action because of a criminal conviction –Some states permit inquiry into criminal background but limit the scope, for example: Prohibit questions about arrests that did not result in convictions Limited ability to ask about “old” convictions Limited ability to ask about misdemeanors or certain first offenses 14

15 Armed & Dangerous The federal and state limits on employee background searches can be fertile ground for negligent hiring claims –Negligent hiring claims arise when a person suffers harm at the hands of an employee and blames the employer’s failure to conduct a reasonable investigation of the applicant’s background –Typical elements of claim: Employment relationship (consider independent contractors; subcontractors relationships) Employee is dangerous, unfit or incompetent Employer should have known or did in fact know Employee’s dangerous propensities were cause of injury 15

16 Armed & Dangerous 14 states (and counting) limit the liability for employers who cannot prohibit employees from keeping guns in their locked cars in the parking lot 16

17 Armed & Dangerous 5 states limit the liability for employers regarding decisions on whether to seek temporary restraining orders on behalf of employees 17

18 Armed & Dangerous Courts generally ask the following questions regarding negligent hiring: –Did the employer know or should have known of an employee’s potential risk? –Could the risk have been discovered by a reasonable investigation? What’s at stake: –Raegan et al v. Dunaway Timber Company (2011): Negligent hiring case where Arkansas jury awarded $7 million in damages to a the family of an Arkansas truck driver killed in an accident. –Linhart v. Heyl Logistics, LLC, et al. (2012): Oregon jury awards $5.3 million in damages on a negligent hiring case against Washington Transportation for failing to conduct background check and verifying driving record. 18

19 Armed & Dangerous Courts ask the following questions regarding negligent hiring: Did the employer know or should have known of an employee’s potential risk? Could the risk have been discovered by a reasonable investigation? 2011 – Arkansas jury awarded $7 million in damages to a the family of an Arkansas truck driver killed in an accident. Claim of negligent hiring was brought against a timber company and its driver. Raegan et al v. Dunaway Timber Company et al 3:10-CV-03016 2012- Oregon jury awards $5.3 million in damages on a negligent hiring case against Washington Transportation for failing to conduct background check and verifying driving record. Linhart v. Heyl Logistics, LLC, et al., Case NO. 10- 03100- PA 19

20 CRISIS MANAGEMENT AND MITIGATING VIOLENCE Armed & Dangerous 20

21 Armed & Dangerous Effective Workplace Violence Crisis Management Protocol –Step 1: Assessment Develop Management Team In-House Resource Political Dynamics –Step 2: Coordinated Buy-In Approach Options 21

22 Armed & Dangerous Effective Workplace Violence Crisis Management Protocol (continued) –Step 3: Educate and Train Supervisor Training (early warning signs; de-escalate tension; prompt reporting) Wide Policy Coverage (Zero Tolerance; Open Communication; No Retaliation) Review And Enhance Security Measures Cooperative Relationship With Law Enforcement 22

23 Armed & Dangerous –Step 4: Investigation Timeframe Reporting to Management –Step 5: Decision Points Access Articulate Understand 23 Effective Workplace Violence Crisis Management Protocol (continued)

24 Armed & Dangerous Plan Implementation –Communication Decision-maker Stakeholder Public –Progress Step by Step Effectiveness –Reassessment Trends Effectiveness Feedback 24

25 ATLANTA AUGUSTA CHARLOTTE DENVER DUBAI LOS ANGELES NEW YORK RALEIGH SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI SILICON VALLEY STOCKHOLM TAIPEI TOKYO WALNUT CREEK WASHINGTON D.C. WINSTON-SALEM www.kilpatricktownsend.com Questions?


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