1. Workplace Violence Prevention in the Age of the “Active Shooter”
Moderator: Angelo I. Amador
Guest Presenter: Terri M. Solomon
August 2, 2016
© 2016 Littler Mendelson, P.C.

2. What is Workplace Violence?
Any physical assault, threatening behavior, verbal abuse or other conduct that is sufficiently severe, offensive or intimidating to cause individuals to reasonably fear for their own safety or for the safety of their family, friends and/or property
© 2016 Littler Mendelson, P.C.

3. Public Violence or Workplace Violence?
San Ysidro McDonald’s Massacre – Restaurant
2011 Norway attacks – Camp
Aurora – Movie Theater
Ft. Hood – Military Facility
Sandy Hook – School
Germanwings 9525 – Commercial Airplane
2015 Charleston Shooting – Church
San Bernadino – Office Party
Pulse – Nightclub
Nice Attack – Public Holiday Event
ALL PUBLIC PLACES –
AND WORKPLACES
© 2016 Littler Mendelson, P.C.

4. Violence in the American Workplace
Highest per capita violence of any country, 4x any other nation in the world (not engaged in civil war)
Nearly 2 million Americans report having been victims of workplace violence each year; how many cases not reported?
© 2016 Littler Mendelson, P.C.

5. Defining the Problem
Criminal – when the perpetrator has no legitimate relationship to the business or its employees and is usually committing a crime in conjunction with the violence (e.g., robbery, shoplifting, or trespassing) Customer or Client – when the perpetrator has a legitimate relationship with the business and becomes violent while being served by the business (e.g., customers, clients, patients, students, inmates, or any other group to which the business provides services)
© 2016 Littler Mendelson, P.C.

6. Defining the Problem
Co-Worker – when the perpetrator is an employee, past employee of the business, or contractor who works as a temporary employee of the business and who attacks or threatens another employee Domestic Violence – when the perpetrator, who has no legitimate relationship to the business, but has a personal relationship with the intended victim, threatens or assaults the intended victim at the workplace (e.g., family member, boyfriend, or girlfriend).
© 2016 Littler Mendelson, P.C.

7. Examples of Workplace Violence Prevented by Reporting, Knowledge and Action
Threats of Violence
Male employee tells co-worker that he has a “good list,” a “bad list” and a lot of guns
Domestic Violence
Female employee with abusive husband leaves home and husband comes to store in mall to try to find her
Suicide
Female employee threatens suicide and tells co-worker that she will take her children with her
Fear of Violence Due to Suspected Mental Illness
Previously good employee begins to talk about cameras watching her and customers following her in cars
© 2016 Littler Mendelson, P.C.

8. Recommendations for Preventing Workplace Violence
Adopt and Distribute Zero-Tolerance Workplace Violence Policy
Designate Management Response Team
Create Emergency Response Plan
Train Managers and Employees
© 2016 Littler Mendelson, P.C.

9. Recommendations for Preventing Workplace Violence
Conduct background checks on prospective employees in accordance with law
Consider changing sign-in procedures to better account for employees
Conduct Safety Audit
Correct problems
Consider “safe room”?
Consider whether it is best for your organization to conduct Active Shooter Training
© 2016 Littler Mendelson, P.C.

10. Workplace Violence Policy
Zero Tolerance, with Company Discretion to Interpret
List Prohibited Behavior
Specify that Weapons are Prohibited
But, Will Company Allow Pepper Spray or Other Self-defense Devices?
Encourage Reporting to Designated Persons
No Retaliation if Employee Reports
© 2016 Littler Mendelson, P.C.

11. Prohibiting Weapons
All 50 states and the District of Columbia allow concealed carry of handguns in some form
Of these, 10 states allow concealed carry without a government-issued license (AK, AZ, AR, ID, KS, ME, MS, VT, WV, WY)*
45 states allow open carry of handguns in some form (all but CA, FL, IL, NY, SC)
Open prohibited in District of Columbia
Arkansas is unclear (AG opinion); Idaho and Wyoming allow constitutional carry for residents only.
OPEN Carry – Texas used to prohibit
© 2016 Littler Mendelson, P.C.

12. Consider Anti-Firearm Signs
Some states require that employers (or property owners) post signs indicating that firearms are prohibited in order to bar
Several of these states (including IL, OH, MN, MS, TX, SC) impose specifications
© 2016 Littler Mendelson, P.C.

13. To post or not to post signs?
PROS
Clear communication of prohibition to employees, vendors, and customers
Often allows for enforcement in court system
Commitment to anti-firearm workplace
CONS
Often large
Myriad of state requirements
May offend/turn-off customers
Often may prohibit employee carry by policy alone—but what about customers, vendors, visitors?
© 2016 Littler Mendelson, P.C.

14. Workplace Violence Policy
Possible Additional Provisions:
Employer Right to Search Desks and Property
Prohibition on Former Employees Returning to Workplace
Domestic Violence
© 2016 Littler Mendelson, P.C.

15. Workplace Violence Policy - Domestic Violence
Employees are encouraged to report if they are a victim or if they know or suspect that a co-worker is a victim
Obligation to report if employee obtained a TRO or is the subject of a TRO
Employer may decide to offer assistance, e.g., EAP,
State/City laws providing legal protections to victims of domestic violence
No discrimination
Accommodation, e.g., time off to seek shelter, attend court, or obtain medical treatment
© 2016 Littler Mendelson, P.C.

16. Myth vs. Reality
Myth: Violent individuals just snap without warnings or cues Reality: In virtually all cases of workplace violence, there are early warning signs/patterns Reality: Workplace violence is seriously underreported
© 2016 Littler Mendelson, P.C.

17. Risk Factors
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18. Recognize Risk Factors
Any threat (direct or indirect) oral or physical threats of harm. harassing Phone calls, physical or electronic stalking or surveillance
Record of violence or violent behavior
Extreme despair, desperation, or depression over recent work, family, financial, or other personal issues
Oscillation between extreme highs and lows
Unusual, prolonged sadness and irritability
Loner with unreciprocated romantic obsession with a co-worker and continues past the co-workers statements of disinterest
Overly—and often irrationally—suspicious/fearful of others, the government. The world is secretly conspiring against them
Strange/delusional thoughts or confused thinking, including seeing and hearings things/voices that are not present
Recognize Risk Factors
© 2016 Littler Mendelson, P.C.

19. Recognize Risk Factors
Substance Abuse
Unusual/unjustified displays of excessive anger that does not dissipate and causes co-workers to be fearful for their physical safety
Moral superiority over company and/or co-workers
Extreme interest in weapons and their destructive power against people; fascination with/approval of incidents of workplace violence; reference to such violence as justified and celebrated as a justified solution under similar circumstances; preoccupation with violent themes of revenge
Unable to receive criticism of job performance. Holds grudge against supervisor and others
Withdrawal, increase in absenteeism, inability to concentrate, and decrease in productivity
Suicidal statements
© 2016 Littler Mendelson, P.C.

20. Domestic Violence: Yearly Incidence in the U.S.
4 million women have a serious assault
1,300 women killed
Most assaults go unreported
© 2016 Littler Mendelson, P.C.

21. Domestic Violence Is A Workplace Issue
39% of all workplace homicides of female employees were caused by a relative or domestic partner
© 2016 Littler Mendelson, P.C.

22. Domestic Violence/ Possible Warning Signs
Attendance problems
Changes in job performance, repetition of errors
Unusually quiet, reluctant to join work group for informal activities
Depression, eats lunch alone, seen crying
Bruises, sunglasses, Long sleeves
© 2016 Littler Mendelson, P.C.
© 2016 Littler Mendelson, P.C.

23. Domestic Violence/ Possible Warning Signs
Unusual number of personal phone calls, strong reaction to calls
Sensitive about discussion regarding home life, hints of trouble at home. Possible reference to partner’s bad moods, anger, temper, or substance abuse
Disruptive personal visits to workplace by present or former partner
Often driving to and from work
Employee startles easily, displays signs of being frightened or anxious, lack of concentration
© 2016 Littler Mendelson, P.C.

24. Sharp Increase in Suicides and Threats of Suicide in Workplace
One EAP reported a 75% increase in number of suicides and attempted suicides in last few years
Causes
Economy
Increase in mental illness in workplace
More stress and pressure at work
Sense of hopelessness and malaise
Loss of medical insurance
© 2016 Littler Mendelson, P.C.

25. Threat/Incident Management Team
Inside
Human Resources
Security
Legal
Senior Management
Inside
Human Resources
Security
Legal
Senior Management
The GOOD
Facilitates communication
Clients
Potential clients
Recruiting efforts
Advertising
The BAD
Employee privacy issues
Legal hurdles
Confidentiality
Poor judgment of one employee can:
Harm employee relations
Hurt the employer’s reputation
Create legal liability
Social Networking: Facebook has 750 million active users. Each user has an average of 130 friends. People spend over 700 billion minutes per month on Facebook alone!
Texting: on average, 4.1 billion text messages are sent every day, and the number of texts has doubled just in the past year. More than 50% of all adults text during any given week.
Blogging: 200 million blogs currently on the web; 54% of bloggers post or “tweet” daily. 7 million people use microblog service Twitter, and more than 62% access Twitter from work only.
Bottom line: These technologies are impacting your organizations and can no longer be ignored!
© 2016 Littler Mendelson, P.C.

26. Threat/Incident Management Team
Outside
Local Law Enforcement
Forensic Psychologist/ Threat Assessment Professional
Legal Counsel
The GOOD
Facilitates communication
Clients
Potential clients
Recruiting efforts
Advertising
The BAD
Employee privacy issues
Legal hurdles
Confidentiality
Poor judgment of one employee can:
Harm employee relations
Hurt the employer’s reputation
Create legal liability
Social Networking: Facebook has 750 million active users. Each user has an average of 130 friends. People spend over 700 billion minutes per month on Facebook alone!
Texting: on average, 4.1 billion text messages are sent every day, and the number of texts has doubled just in the past year. More than 50% of all adults text during any given week.
Blogging: 200 million blogs currently on the web; 54% of bloggers post or “tweet” daily. 7 million people use microblog service Twitter, and more than 62% access Twitter from work only.
Bottom line: These technologies are impacting your organizations and can no longer be ignored!
© 2016 Littler Mendelson, P.C.

27. Workplace Violence – Emergency Action Plan
Identify Management Response Team
Important Phone Numbers
Partner with Local Law Enforcement
Safety/Security Audit
Practice Drills
Communication Tree
© 2016 Littler Mendelson, P.C.
© 2016 Littler Mendelson, P.C.

28. Workplace Violence – Emergency Action Plan
Planning and Response to an Active Shooter: An Interagency Security Committee Policy and Best Practice Guide (Nov. 2015)
© 2016 Littler Mendelson, P.C.

29. Threat Assessment How Real Is the Threat? How Imminent is the Threat?
Do I need to do something now?
Answers Determine Who You Call First!
© 2016 Littler Mendelson, P.C.

30. Do NOT ... Automatically suggest a restraining order
Tell the person to “just get out” or fire without careful planning
Immediately bring in Security
© 2016 Littler Mendelson, P.C.

31. Legal Issues
© 2016 Littler Mendelson, P.C.

32. Legal Issues - Negligence
Negligent Hiring
Negligent Training
Negligent Retention
Negligent Supervision/ Control
Negligent Reference
Failure to Warn Targeted Victims
© 2016 Littler Mendelson, P.C.

33. ADA Concerns: The Bottom Line
Employer may discipline an employee (including termination) in response to the employee’s violent or threatening behavior even if behavior was precipitated by a mental illness
Employee cannot pose direct threat of harm to himself or others (29 U.S.C. § 12113(b); 29 C.F.R. § (r))
Focus on job requirements and conduct rules, e.g., Workplace Violence and Termination policies
Include the ability to perform work safely in job descriptions
© 2016 Littler Mendelson, P.C.

34. Should an Employer Conduct Active Shooter Training?
© 2016 Littler Mendelson, P.C.

35. Active Shooter Training: To Conduct or Not To Conduct?
Putting Recent Mass Shootings in Perspective
Mass shootings are not a new phenomenon
Prior to Paris massacre, 10 mass shootings (between 6-26 victims each) since 2012
73 mass shootings in U.S. in 30 years prior to 2012
Yet, mass shootings are very rare statistically
Unlike other types of workplace violence, there are rarely warning signs
© 2016 Littler Mendelson, P.C.

36. FBI Study of Active Shooter Incidents 2000-2013
Study Summary:
Active shooter incidents are becoming more frequent—the first seven years of the study show an average of 6.4 incidents annually, while the last seven years show 16.4 incidents annually.
These incidents resulted in a total of 1,043 casualties (486 killed, 557 wounded—excluding the shooters).
All but six of the 160 incidents involved male shooters (and only two involved more than one shooter).
More than half of the incidents—90 shootings—ended on the shooter’s initiative (i.e., suicide, fleeing), while 21 incidents ended after unarmed citizens successfully restrained the shooter.
In 21 of the 45 incidents where law enforcement had to engage the shooter to end the threat, nine officers were killed and 28 were wounded.
The largest percentage of incidents—45.6 percent—took place in a commercial environment (73 incidents), followed by 24.3 percent that took place in an educational environment (39 incidents). The remaining incidents occurred at the other location types specified in the study—open spaces, military and other government properties, residential properties, houses of worship, and health care facilities.
BUT…
“This is not a study of mass killings or mass shootings, but rather a study of a specific type of shooting situation law enforcement and the public may face. Incidents identified in this study do not encompass all gun-related situations; therefore caution should be taken when using this information without placing it in context. Specifically, shootings that resulted from gang or drug violence—pervasive, long-tracked, criminal acts that could also affect the public— were not included in this study. In addition, other gun-related shootings were not included when those incidents appeared generally not to have put others in peril (e.g., the accidental discharge of a firearm in a school building or a person who chose to publicly commit suicide in a parking lot). The study does not encompass all mass killings or shootings in public places and therefore is limited in its scope. Nonetheless, it was undertaken to provide clarity and data of value to both law enforcement and citizens as they seek to stop these threats and save lives during active shooter incidents.
As a result, the FBI identified 160 active shooter incidents that occurred in the United States between 2000 and Though additional active shooter incidents may have occurred during this time period, the FBI is confident this research captured the vast majority of incidents falling within the search criteria. To gather information for this study, researchers relied on official police records (where available), FBI records, and open sources. The time span researched was intended to provide substantive results to aid in preparedness and response efforts. This study is not intended to explore all facets of active shooter incidents, but rather is intended to provide a baseline to guide federal, state, tribal, and campus law enforcement along with other first responders, corporations, educators, and the general public to a better understanding of active shooter incidents.”
© 2016 Littler Mendelson, P.C.

37. Elements of Active Shooting Incidents
Average Duration: minutes
Often end before law enforcement arrives
In 64 active shooter incidents where duration could be ascertained, the FBI found:
69% ended in 5 minutes or less
36% ended in 2 minutes or less
Location: Places with large concentrations of people who are less likely to be armed
Attacker
80% Male
Often no pattern/method to selection of most victims after initial/primary target
Made detailed plans for extended period
Familiar with location and chosen weapon
© 2016 Littler Mendelson, P.C.

38. Active Shooter Training: To Conduct or Not To Conduct?
Cons:
No legal obligation
Potential legal liability if employee is injured/ killed during or after training
Cost
Difficulty in reaching all employees
© 2016 Littler Mendelson, P.C.

39. Active Shooter Training: To Conduct or Not To Conduct?
Pros:
Preparedness training and drills could save lives if there is ever an active shooter in workplace
Gives employees more peace of mind
Excellent resources exist, some at no cost
Training by local police departments in some municipalities
Department of Homeland Security website
“Run, Hide, Fight” video
© 2016 Littler Mendelson, P.C.

40. Active Shooter Training: To Conduct or Not To Conduct?
Considerations:
Make voluntary
Consider partnering with law enforcement
Local police
Department of Homeland Security
Make clear that recommendations are those of law enforcement, not the employer
© 2016 Littler Mendelson, P.C.
© 2016 Littler Mendelson, P.C.

41. Workplace Violence in the Age of the “Active Shooter”
August 2, 2016
Terri M. Solomon Shareholder Littler Mendelson, P.C. New York Office
Angelo I. Amador Senior Vice President & Regulatory Counsel
National Restaurant Association
© 2016 Littler Mendelson, P.C.