By Mark T. Broth, Esq.
On May 31, 2019, an engineer employed by the City of Virginia Beach, Virginia, is alleged to have shot and killed 11 co-workers and a City contractor and injured several others. According to several media reports, the shooter was facing disciplinary action resulting from a fight with a co-worker. The shooter is also alleged to have been involved in physical “scuffles” with other City employees and had demonstrated other unspecified behavioral problems. The shooter submitted a letter of resignation on the day of the shooting. However, he allegedly retained his employee security badge and used it to access the building where the victims were at work. The shooter died in a shootout with local police.
This incident has brought national attention back to the issue of workplace violence. Beginning in the 1980’s, several incidents of violence involving U.S postal workers gave rise to the term “going postal” and began to focus employer attention on workplace safety. New Hampshire was not immune from the reality of workplace violence. The communities of Colebrook, Walpole, Newbury, Epsom, Manchester and others saw incidents where public employees, including both law enforcement personnel and civilian workers, were killed or injured while performing their jobs. Like other employers nationwide, New Hampshire public employers began to pay greater attention to threats and acts of violence by employees, customers and others with whom their employees had contact. Threats of violence and physical altercations that may once have been ignored or treated as minor disciplinary events were now recognized as serious matters and grounds for termination. Many employers adopted workplace violence policies intended to reduce the risk to employees by prohibiting possession of guns and other weapons in the workplace and establishing “zero tolerance” policies for threats or acts of violence.
Sadly, workplace violence has become a subset of a much larger problem of gun violence and mass shootings. Tragic incidents have occurred in theaters, clubs, concert venues, malls, schools, and other locations where people congregate. The frequency of these events, together with the general coarsening of public discourse and the casual nature in which some public figures use threatening language can only serve to increase the risk that events like Virginia Beach will reoccur. Public employers are encouraged to review and update their policies and training relative to workplace violence.
What should a workplace violence policy contain? We strongly encourage the following elements. A policy should define the types of conduct that is prohibited, including verbal abuse, psychological abuse, sexual assault, physical assault, bullying, and other threatening behavior. A policy should make clear that any threat of violence against another person, whether or not acted upon, and any incidents of violence towards another person will not be tolerated and will in most instances be a basis for immediate termination. The goal is to send employees a clear message and remove any expectation that violent acts will be met with leniency. New Hampshire communities have successfully relied on this type of policy to justify and survive legal challenge to the termination of employees for shoving or spitting on a co-worker, as well as more egregious violent conduct. New Hampshire communities have successfully relied on this type of policy to justify and survive legal challenge to the termination of employees for shoving or spitting on a co-worker, as well as more egregious violent conduct. While a “zero tolerance” policy is permissible, there may be rare instances where extenuating circumstances suggest some remedial measure other than termination and a “zero tolerance” policy can be undermined if employers make regular exceptions.
A policy should reserve to the employer the right to require employees alleged to have made threats or acts of violence to submit to a “fitness for duty” examination. From both an employee safety and liability standpoint, employers should be hesitant to retain an employee who has engaged in prohibited conduct without obtaining some assurance that the conduct is unlikely to reoccur. A mental health professional may be able to give some level of assurance and an employer reduces its future liability risk if it relies on a professional opinion rather than its own assessment of an employee’s propensity for violence.
A policy should prohibit the possession of guns and other weapons on employer premises, unless authorized by the employer and necessary for the performance of job duties. While RSA 156:26 restricts the ability of local government to regulate guns and other weapons, it seems highly unlikely that the Legislature intended to strip local government from regulating the conduct and protecting the safety of government employees. Finally, the policy should make clear how an employee can report threatening and other unsafe behaviors by co-workers or others with whom the employee has contact in the performance of job duties.
A written policy should be supported by training. The policy should be reviewed with employees so that employees have a clear understanding of what is considered unacceptable conduct and are aware of the consequences of a policy violation. We also recommend that local governments work with the law enforcement community to consider improvements to physical security to limit public access to non-public work areas and to restrict employee access to buildings and offices that are not necessary for performance of their jobs. Police and other emergency responders should also be encouraged to engage in preplanning and holding drills in anticipation of a potential violent incident.
No policy can stop a bullet or prevent someone from engaging in a homicidal act. But a policy can be part of an effort to establish a workplace culture of tolerance and respect, where employees have non-violent alternatives to expressing their frustrations.
Mark Broth is a member of DrummondWoodsum’s Labor and Employment Group. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2019 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
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