Employment Law Information Network
WORKPLACE VIOLENCE: EMPLOYERS NEED TO BE BETTER PREPARED
As an employment attorney and President of an HR Consulting Firm who makes my living conducting employment law training, I am hard-pressed to understand why employers are not better prepared for workplace violence. I guess that one reason is that it takes years of litigation for employers to “get it”. Similar to sexual harassment that first appeared in the 1970’s which took almost 35 years for most employers “to get” and to come to understand that they had to conduct training to avoid liability under the employment discrimination laws, I assume that the same is true of workplace violence. Perhaps we are just in its infancy when many employers are not yet aware that it could happen in their workplace and also do not really know how to prepare. Or perhaps it is due to the fact that many employers just really do not understand the consequences of having an instance of workplace violence occur in their workplace.
What are some of the consequences of workplace violence in a workplace? Of course there is the immediate consequence of the horrific loss of life and unnecessary violence they and their employees have to endure. In addition, there is the PR nightmare of being known as a company that failed to prepare for workplace violence and the appearance of your company on the evening news with police crime scene tape all around your workplace. But perhaps employers don’t understand the deeper implications that failing to prepare for workplace violence can have on them.
Department of Labor Publishes COBRA Subsidy Extension Model Notices
The government has published updated model forms for the recently extended COBRA subsidy.
Congress passed legislation on December 19th extending the COBRA subsidy eligibility period and coverage period. The extension came as part of the Fiscal Year 2010 Defense Appropriations Act.
The 2010 DOD Act extends the COBRA premium reduction eligibility period for two months until February 28, 2010. This means that employees who are terminated on or before February 28, 2010 may be eligible for the subsidy.
Additionally, the legislation increases the maximum period for receiving the subsidy for an additional six months (from nine to 15 months).
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DOL Publishes A Safe and Sober Message About Workplace Parties and Drinking
The U.S. Department of Labor has published a message regarding safe and sober workplace parties.
The workplace is frequently a place where employees and employers get together to celebrate special events. Workplace parties typically mean lots of music, food and drinks. If the drinks include alcohol the potential for unfortunate consequences greatly increases. Opinions vary regarding the appropriateness of making alcoholic beverages available at workplace parties or other company-sponsored events. Ignoring the possibility that some employees or guests may drive home “under the influence” invites trouble.
MISSED WARNING SIGNS OF WORKPLACE VIOLENCE IN FORT HOOD AND ORLANDO SHOOTINGS
In the wake of the November 5, 2009 Fort Hood tragedy that left 13 dead and 42 wounded, employers can learn an important lesson about not ignoring the warning signs of workplace violence. Apparently military psychiatrist Major Nidal Hasan had shown warning signs for years even since his residency in medical school. However, no one picked up on these or recognized them. Understanding how to recognize the warning signs of workplace violence is an important step that employers can take to avoid workplace violence.
What types of warning signs are there?
In this case, apparently there were many. For instance, the fact that Hasan had many communications with a suspected terrorist advisor, Anwar al-Awlaki, a former imam at the Dar Al-Hijrah Islamic Center in Falls Church, Virginia. Anway al-Awlaki was allegedly a “spiritual advisor” to some of the terrorists and hijackers involved in the 9/11 terrorist attacks. Apparently, the military looked into these communications but then decided they were not important since violence or terrorist plots were not mentioned. In addition, a former classmate of Hasan’s who attended school with him in Maryland for two years described him as a “ticking time bomb” and stated that when he was a student in Maryland he gave a presentation justifying sucicide bombings. Hasan also reportedly told this classmate that he is a Muslim first and then an American.
In addition, there were many warning signs in the months immediately leading up to the shooting spree that were ignored by all. Apparently, at the Mosque that he attended he made many comments to Congregants at the Mosque stating that Muslims should not have to be in the military and go over seas to fight against other Muslims in the War on Terror. He had also complained to many about his upcoming deployment because he did not feel comfortable going overseas to fight other Muslims.
All of these signs were unfortunately missed by the Military. Had they taken the time to notice them and perhaps connected the dots, they might have seen that Hasan was on the verge of engaging in this violent massacre.
The next day in Orlando, Florida another workplace shooting took place. This one by Jason Rodriguez who also had many of the warning signs. Mr. Rodriguez had been fired from his engineering firm, Reynolds Smith & Hills more than two years ago. He obviously was quite upset about his termination and told a reporter who asked him why he had done this that it was “because they left me to rot”. Apparently, he had never forgotten the anger nor moved on from the resentment caused by his termination. In addition, his marriage had ended, he could not pay the child support for his son, his home was taken in foreclosure and he had to declare bankruptcy. Faced with all of these stresses, Mr. Rodriguez was driven over the edge and on November 6, 2006 walked into his former office and began shooting, killing one and wounding five other employees. His neighbors and mother had noticed that he had in recent weeks become dishelved but again no one had done anything about some of the warning signs he showed. In fact, in many of the workplace violence cases, investigators have always reported that there were telltale signs prior to the violence that should have been noticed by others. The gunman at Virgina Tech was a loner who rarely spoke to others. This is a clear warning sign of a person that might be prone to engage in such violence. He also had been found to be a danger to himself and others by a public agency but no one did anything about this.
What are some of the warning signs that employers should watch out for?
Employees who display any or some of the following warning signs may be more likely to engage in some sort of violence at work.
• Confrontational Attitude
• Talking about an attack
• Paranoid thoughts
• Threatening Co-Workers
• Threatening Bosses
• Showing guns or bragging about guns to Co-workers
• Harassment of Other Employees
• Showing Signs of Substance Abuse
• Aggressive Behavior
• Unusual Behavior
• Being a Loner
• Excessive Cursing
• Bullying Others
• Outbursts of Anger
• Frequent Absenteeism
• Sudden Withdrawal
Warning signs are important for employers to not ignore because they signal that the employee may be on the verge of “losing it” and if the employer were to step in and help they might be able to avoid an instance of violence in their workplace. Employers should have Workplace Violence Prevention Policies and provide training to their employees on workplace violence prevention. These training seminars can help train employees to be aware of the warning signs of workplace violence and will help educate employees on ways to make the workplace safer. The efforts that employers put in to avoiding workplace violence can go a long way to protecting their employees and workplaces from unnecessary violence.
For more information, or to schedule a workplace violence prevention seminar for your workplace, please contact us at info@hrlearningcenter.com or visit our website at http://www.hrlearningcenter.com. You may also visit our workplace violence prevention page at http://www.hrlearningcenter.com/workplaceviolence.aspx.
Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
info@hrlearningcenter.com
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Department of Homeland Security Rescinds No Match Rules
After much controversy and litigation, the Department of Homeland Security threw in the towel and rescinded its proposed No Match rules.
For years, the Social Security Administration (“SSA”) has been sending “No-Match Letters” to employers who employed individuals whose social security numbers (“SSN”) did not match their personal information. The SSA, however, provided unclear guidance for responding to the letters. Seeking to fill the void, DHS the agency responsible for enforcement of our immigration laws, issued a new rule describing the steps an employer must take when it receives a “no match” letter from DHS or the Social Security Administration (SSA).
In October 2007, the AFL-CIO labor union obtained a court injunction prohibiting enforcement of the new rule. The DHS subsequently issued amended regulations, seeking to address some of the flaws raised by the union. But the effort lost steam, particularly after the new administration took over.
“After further review,” wrote the agency in its rescission notice, “DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.” The rescission becomes effective November 6, 2009.
DHS notes that employers should still react when receiving a no match letter. An employer who receives such a letter may be seen to be on notice that the worker could be illegal. “Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘‘constructive knowledge.’’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.”
“Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.” Thus, the government has put employers between a rock and a hard place, shrugged its bureaucratic shoulders, and said “Too bad for you.”
Employers who receive No Match letters should take action to protect themselves from possible immigration enforcement actions.
First, upon receipt of a No Match letter, the company should research its own records to check for typographical errors.
If no errors are found, the employer should notify the employee that the SSN is incorrect. Ideally the notice should be in writing.
The company should advise the employee to resolve the issue with the SSA within a reasonable period of time. Thirty to ninety days ought to be sufficient.
If the employee is unable to resolve the discrepancy then the employer should probably terminate the employee.
Employers should be aware that improper terminations may be a violation of federal law. The DHS wrote in its commentary that it “acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a No-Match letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the anti-discrimination provision of the Immigration and Nationality Act of 1952 (“INA”).
Related Articles:
EEOC’s Proposed GINA Regulations Limit ADA Inquiries
New Federal Legislation: GINA
Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
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Protect your Workplace from the Violence and Murder of Annie Le at Yale University
Don’t let an incident like the murder of Annie Le at Yale University happen in your workplace. Incidents of workplace violence happen regularly throughout the United States and threaten employers with liability on a daily basis. Yet statistics reveal that most employers fail to provide training on workplace violence and many do not even have a workplace violence policy. All of these are big mistakes for employers! Let’s start at the beginning and understand the definition of workplace violence and how it can impact your workplace.
Workplace violence is considered to be “any physical assault or threatening behavior or verbal abuse occurring in the work setting”. So, as you can see, it is clearly much broader than just the homicides that get reported in the media. Some examples of workplace violence include:
• Intimidation
• Harassment
• Bullying
• Shootings
• Threats
• Verbal Abuse
• Stabbings
• Rapes
• Suicides
Since the definition and the types of incidents that workplace violence includes are so broad, it is extremely important that employers have workplace violence policies to protect the employers from liability. The policy will help managers and employees understand that workplace violence includes instances of bullying and harassment and not just murders. Once your policy defines that bullies and harassers are included in the definition of workplace violence and once your policy sets forth that all instances of workplace violence must be reported, an employer would be better protected than Yale University was in the Annie Le case. Because had Yale had such a policy and had they conducted training on their policy (I don’t have any personal knowledge of whether in fact they had such a policy or conducted such training) then perhaps the other workers in the lab would have known that when the lab technician arrested for the murder of Annie Le, Raymond Clark, was allegedly harassing other workers about the cleanliness of their mice cages, that this constituted workplace violence and should have been reported to human resources immediately. Perhaps if it had been reported to human resources, Mr. Clark would have been disciplined and/or terminated which could possibly have prevented the ensuing violence in which Annie Le lost her life.
Thus, the best way for an employer to protect itself is to have a policy, to provide workplace violence training and to take affirmative steps to make the workplace safer.
What are some of those steps? There are of course the obvious steps such as installing better lighting, security cameras and alarms and then there are the less obvious ways to make the workplace safer. These usually involve human resources. HR should strive to conduct background checks on all employees as well as to conduct exit interviews when an employee terminates his/her employment with that company. This is especially important because of the various theories of legal liability that plaintiff’s lawyers love to use in these cases that include negligent hiring and negligent retention.
Negligent hiring is based on the theory that the employer failed to conduct a background check on the employee prior to hiring the employee. The theory surmises that had they conducted a background check they would have known that the violent employee had a history of violence in prior employment situations and thus they would have not hired him/her. Thus, the employer was negligent in bringing this violent employee into the workplace without checking the employee’s background. In addition, when the employee during the course of his/her employment has acted in a manner that demonstrates that he/she may be prone to violence, such as the reports that had come out that Mr. Clark allegedly harassed other employees about the cleanliness of their mice cages, and the employer has done nothing to discipline that employee, the negligent retention theory suggests that management was negligent in retaining that employee despite clear indications that the employee had previously been violent in the workplace.
Another important way that employers can protect themselves from this type of violence is by training their managers and employees to be sensitive to the warning signs of an employee who could likely engage in workplace violence. Time and time again in the aftermath of these tragedies, the witnesses and friends all agree that in hindsight there were warning signs that people just ignored or brushed off and did not know to report. Such as Cho, the lone gunman at Virginia Tech who witnesses reported to be a loner who rarely spoke to anyone and someone who had been previously reported to be a danger to himself and others, all clear warning signs that were ignored. In the recent workplace violence case at the LA Fitness gym in a Pittsburgh, Pennsylvania suburb where a lone gunman entered the gym and started shooting, people who knew the gunman also reported that he was a real loner who always kept to himself. Such warning signs can tip off others so that they report these warning signs to human resources to be investigated which can help to prevent these instances of workplace violence.
So employers can take actions to prevent their workplaces from the tragedy that happened to Annie Le at Yale University. Employers can develop policies prohibiting workplace violence, deliver training on the warning signs of workplace violence and take steps to make their workplaces safer. For more information or to schedule a workplace violence training seminar for your workplace, please contact Melissa Fleischer, Esq. at 914-417-1715 or via e-mail at info@hrlearningcenter.com. Please feel free to visit our website at http://www.hrlearningcenter.com.
Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
info@hrlearningcenter.com
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EEOC Says: Avoid Swine Flu Discrimination Like The Plague
The EEOC has warned employers to avoid swine flu discrimination. Really? Swine flu discrimination? Did the EEOC sneak in a new protected class?
Well, not exactly. On May 11th the EEOC published on its website a short comment titled “Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu).” The EEOC suggests that employers should refrain from national origin discrimination against Mexicans.
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Why Do Employers Need to Document Their Reasons for Terminations when Employment is At-Will?
One question that managers often have is why they need to worry about documentation when terminating employees since everyone is an employee-at-will. The answer requires a short summary of employment law 101. Although employment in every state in the country other than Montana is employment-at-will, the answer lies in what most employees do once they have been terminated.
Indian Reservation Business Subject to Federal Wage Law
A Ninth Circuit court of appeal has concluded that the overtime provisions of the Fair Labor Standards Act (“FLSA”) applies to a business located on an Indian reservation and owned by Indian tribal members. The court also ruled that the United States Department of Labor has the authority to enter the Indian reservation to inspect the books of that business for enforcement purposes.
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EEOC’s Proposed GINA Regulations Limit ADA Inquiries
The Genetic Information Nondiscrimination Act (“GINA”), which becomes effective on November 21, 2009 prohibits employers from acquiring genetic information about its employees, with certain exceptions. (Follow this link for a summary: Summary of GINA.)
The law will require employers to change their current practices regarding the acquisition of medical information. Practices that have been permissible under the ADA will no longer be permissible on account of GINA. The EEOC’s recently published proposed regulations make this challenge apparent.
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Department of Labor Publishes Model Notice Forms For Amended COBRA / ARRA Premiums Subsidy
Employers’ obligations under COBRA have been significantly increased by the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA is commonly known as the economic stimulus legislation recently passed by Congress and signed by President Obama.
Does An Employee Qualify For ARRA/COBRA Subsidy After Reduction In Hours Or Resignation?
Employers are scrambling to understand and implement the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA is commonly known as the economic stimulus legislation recently passed by Congress and signed by President Obama.
What Your Company Should Do If The Employment Non-Discrimination Act Becomes Law
One of the major employment law changes that is likely to come about early in the Obama Administration is the passage of the Employment Non-Discrimination Act. This bill would amend Title VII to prohibit discrimination based upon sexual orientation. Prior versions of this bill included gender identity as well as sexual orientation. However, the current version of the bill know as HR 3685 that was introduced by Representative Frank only includes sexual orientation as a protected class.
Won’t you be my neighbor? Allegations of Non-employee sexual harassment.
An employee complains to HR about being sexually harassed at work by a non-employee. Can the employer face liability for a non-employee’s behavior? The short answer yes, under Title VII the employer must investigate and take action to end the harassment.
My company has 83 cell phone stores across the country. Two of these stores are within about 20 miles of each other in Tennessee. Both of these stores happen to be next to military recruiting offices and the same Recruiter works at both stores.
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California EDD Overwhelmed, Short of Funds As Unemployment Reaches 9.3%
As the unemployment rate in California increased to 9.3% statewide in December 2008, the state agency responsible for administering unemployment benefits, the Economic Development Department (EDD) is overwhelmed. It has a significant case backlog and has drained the unemployment insurance fund.
As reported in the L.A. Times, “the state is paying out $30 million to $34 million a day in benefits. During the week of Jan. 5, its balance fell from about $500 million to $270 million.”
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