What you should know about workplace violence in Washington
August, 2004
This article was originally presented to the Washington Defense Trial Lawyers in July, 2004.
Types of Workplace Violence
1. Violence by Strangers: Involves verbal threats, threatening behavior, or physical assaults by an assailant who has no legitimate business relationship to the workplace. In Washington State, violence by strangers accounts for the most fatalities related to workplace violence. Workplaces at risk of violence by strangers commonly include late night retail establishments and taxi cabs.
2. Violence by Customers or Clients: Involves verbal threats, threatening behavior or physical assaults by an assailant who either receives services from or is under the custodial supervision of the affected workplace or the victim. Violence by customers or clients may occur on a daily basis in certain industries and represent the majority of non-fatal injuries related to workplace violence. The workers that generally suffer from this type of workplace violence typically provide direct services to the public, e.g. bus drivers, health care workers, social services providers, teachers, law enforcement, and sales personnel.
3. Violence by Co-workers: Involves verbal threats, threatening behavior or physical assaults by an assailant who has some employment-related involvement with the workplace, including current and former employees. Although violence by co-workers attracts and receives most of the media attention, this type of violence only accounts for a small portion of all workplace violence related fatalities.
4. Violence by Personal Relations: Involves verbal threats, threatening behavior or physical assaults by an assailant who, in the workplace, confronts an individual with whom he or she has or had personal relations outside of work. Personal relations include current and former spouses, lovers, relatives, friends, and acquaintances.
Washington's High Risk Industries
1. Highest risk industries in Washington State for fatalities include:
a. retail trade;
b. security services; and
c. transit.
2. Highest Risk Industries In Washington State for Non-Fatal Injuries Related to Workplace Violence
| Rank |
Industry & Standard Industrial Classification (SIC) Codes Workers |
Compensation Claims per 10,000 Workers |
| 1 |
Psychiatric Hospitals (8063) |
908 |
| 2 |
Residential Care (8361) |
489 |
| 3 |
Skilled Nursing Care (8051) |
288 |
| 4 |
Nursing/Personal Care (8059) |
206 |
| 5 |
Job Training Services (8331) |
131 |
| 6 |
Detective and Armored Car Services (7381) |
120 |
| 7 |
Police Protection (9221) |
90 |
| 8 |
Administration of Social and Manpower Programs (9441) |
88 |
| 9 |
Correctional Institutions (9223) |
73 |
| 10 |
Rooming and Boarding Houses (7021) |
67 |
| 11 |
General Medical/Surgical Hospitals (8062) |
66 |
| 12 |
Child Day Care Services (8351) |
59 |
| 13 |
Specialty Outpatient Clinics (8093) |
59 |
| 14 |
Membership Organizations-not Elsewhere Classified (8699) |
51
|
| 15 |
Drinking Places (5813) |
48 |
| 16 |
General Government-not Elsewhere Classified (9199) |
47
|
| 17 |
Home Health Care Services (8082) |
45 |
| 18 |
Elementary and Secondary Schools (8211) |
34 |
| 19 |
Apartment Building Operators (6513) |
19 |
Cost of Workplace Violence in Washington
1. In 2002, incidents of workplace violence killed seven people. Half of these fatalities were from shootings.
2. For one fatality, Washington's State Fund for Industrial insurance pays an average of $155,000 in survivor's benefits.
3. The average cost-per-claim related to workplace violence is over $3,500.
4. Employers often incur replacement or retraining costs, lost production costs, administrative costs, and litigation costs.
Laws Pertaining to Workplace Violence
1. Late Night Retail Workers Crime Protection: WASH. REV. CODE § 49.22, et seq.; WASH. ADMIN. CODE §296.832 et seq.
a. 296-832-100: Applies to all retail businesses operating between the hours of 11:00 p.m. and 6:00 a.m., with the exception of hotels, lodging facilities, restaurants, and taverns.
b. 296-832-200: Employers must make sure all employees receive crime prevention training as part of their accident prevention program.
i. Instruct employees on the purpose and function of robbery and violence prevention to provide them with the knowledge and skills required to maintain their personal safety.
ii. Provide training and training materials that outline the employer's:
1. Security policies;
2. Safety and security procedures; and
3. Personal safety and crime prevention techniques.
iii. Provide formal instruction about crime prevention through a training seminar or training video presentation that includes these topics:
1. How keeping the store clean, neat and uncluttered discourages potential robbers;
2. Why the cash register should be kept in plain view from outside the store, if your store layout allows;
3. Reasons for operating your business with only a minimum number of cash registers at night;
4. Reasons for keeping cash register funds to a minimum;
5. How to take extra precautions after dark such as ways to keep alert, making sure appropriate lights are on, inspecting dark corners, and identifying possible hiding places for robbers;
6. Violence prevention procedures in case of a robbery.
iv. Have employees sign a statement indicating the date, time, and place they received their crime prevention training.
v. Keep a record of this information readily available for review when requested by the department of labor and industries. Note: Employer records of employee training and verification may be kept electronically.
vi. Have a videotape or other materials about crime prevention available to all employees at their request.
vii. Provide a refresher course in crime prevention training annually.
c. 296-832-300: Employers must take certain safety measures to discourage crime in their store.
i. Have a safe, which may include a drop-safe, limited access safe, or comparable device;
ii. Post a notice about the store's safe and cash register;
1. There is a safe in the store;
2. Employees have no access to the safe;
3. The cash register only contains enough cash to do business;
4. Note: WISHA does not cite for having more money in the safe than is required to do business.
iii. Provide outside lighting for the approach and parking lot for all hours the store is open, which may be accomplished by:
1. Providing surveillance lighting to observe pedestrian and vehicle entrances;
2. Providing lighting of a minimum of one-foot candle to comply with ANSI/IES RP7-1983. Lighting levels can be measured with a light meter; for comparison purposes 1 foot – candle = 1 lumen incident per square foot = 10.76 lux.
2. Requirements for "Health Care Settings," WASH. REV. CODE § 49.19 et seq.
a. These statutes were enacted because:
i. Violence is an escalating problem in many health care settings in this state and across the nation;
ii. Based on an analysis of workers' compensation claims, the Department of Labor and Industries reports that health care employees face the highest rate of workplace violence in Washington state;
iii. The actual incidence of workplace violence in health care settings is likely to be greater than documented because of failure to report or failure to maintain records of incidents that are reported;
iv. Patients, visitors, and health care employees should be assured a reasonably safe and secure environment in health care settings; and
v. Many health care settings have undertaken efforts to assure that patients, visitors, and employees are safe from violence, but additional personnel training and appropriate safeguards may be needed to prevent workplace violence and minimize the risk and dangers affecting people in health care settings.
b. Workplace Violence Plan – Security and Safety Assessment, WASH. REV. CODE § 49.19.020
i. Each health care setting should develop and implement a plan to reasonably prevent and protect employees from violence at the setting. The plan shall address security considerations related to the following items, as appropriate to the particular setting, based upon identified hazards in the assessment:
1. The physical attributes of the health care setting;
2. Staffing, including security staffing;
3. Personnel policies;
4. First aid and emergency procedures;
5. The reporting of violent acts; and
6. Employee education and training.
ii. Before the development of the required plan, each health care setting shall conduct a security and safety assessment to identify existing or potential hazards for violence and determine the appropriate preventive action to be taken. The assessment shall include, but is not limited to, a measure of the frequency of, and an identification of the causes for and consequences of, violent acts at the setting during at least the preceding five years or for the years records are available for assessments involving home health, hospice, and home care agencies.
iii. In developing the required plan, the health care setting may consider any guidelines on violence in the workplace or in health care settings issued by the Department of Health, the Department of Social and Health Services, the Department of Labor and Industries, the Federal Occupational Safety and Health Administration, Medicare, and health care setting accrediting organizations.
c. Violence Prevention Training, WASH. REV. CODE § 49.19.030
Frequency: Each health care setting shall provide violence prevention training within 90 days of the affected employee's hiring date, unless the employee is a temporary employee. Thereafter, violence prevention training must take place on a "regular basis." For temporary employees, training would take into account unique circumstances. The training may vary by the plan and may include, but is not limited to, classes, videotapes, brochures, verbal training, or other verbal or written training that is determined to be appropriate under the plan. The training must address the following topics, as appropriate to the particular setting and to the duties and responsibilities of the particular employee being trained:
1. General safety procedures;
2. Personal safety procedures;
3. The violence escalation cycle;
4. Violence-predicting factors;
5. Obtaining patient history from a patient with violent behavior;
6. Verbal and physical techniques to de-escalate and minimize violent behavior;
7. Strategies to avoid physical harm;
8. Restraining techniques;
9. Appropriate use of medications as chemical restraints;
10. Documenting and reporting incidents;
11. The process whereby employees affected by a violent act may debrief;
12. Any resources available to employees for coping with violence; and
13. The health care setting's workplace violence prevention plan.
d. Record Keeping Requirements for Violent Acts, WASH. REV. CODE § 49.19.040:
Health care settings must keep a record of any violent act against an employee, a patient, or a visitor occurring at the setting. Minimal requirements, include:
1. The health care setting's name and address;
2. The date, time, and specific location at the health care setting where the act occurred;
3. The name, job title, department or ward assignment, and staff identification or social security number of the victim if an employee;
4. A description of the person against whom the act was committed;
5. A description of the person committing the act;
6. A description of the type of violent act;
7. An identification of any body part injured;
8. A description of any weapon used;
9. The number of employees in the vicinity of the act when it occurred; and
10. A description of actions taken by employees and the health care setting in response to the act. Each record shall be kept for at least five years following the act reported, during which time it shall be available for inspection by the department upon request.
e. Penalties, WASH. REV. CODE § 49.19.050. Failure of a health care setting to comply with this chapter shall subject the setting to citation.
3. Washington's Industrial Insurance Act, WASH. REV. CODE Title 51
a. Workers' compensation laws are intended to compensate workers for injuries "arising out of," or "in the course of employment."
b. Acting "in the course of employment" is defined by WASH. REV. CODE § 51.08.013 and means that the worker acting at his or her employer's direction or in the furtherance of his or her employer's business, which includes time spent going to and from work on the jobsite, as defined in WASH. REV. CODE §§ 51.32.015 and 51.36.040, insofar as such time is immediate to the actual time that the worker is engaged in the work process in areas controlled by his or her employer, except parking area. It is not necessary that at the time an injury is sustained by a worker he or she is doing the work on which his or her compensation is based or that the event is within the time limits on which industrial insurance or medical aid premiums or assessments are paid.
c. The Industrial Insurance Act (IIA) entitles injured employees to "speedy, no-fault compensation for injuries sustained on the job," and gives employers immunity from employee's civil suits. The Legislature created an exception to this rule, permitting employees to file suit against their employers when the employer deliberately injures the employee. Washington courts narrowly interpret this exception. In order for an employer's actions to fall under the exception, the employee must prove: (1) the employer had actual knowledge that an injury was certain to occur, and (2) the employer willfully disregarded that knowledge. As to the first prong, Washington courts have required a specific intent to injure in order to sustain a claim under WASH. REV. CODE § 51.24.020. Mere negligence does not rise to the level of deliberate intention. Gross negligence and a failure to follow safety procedures do not constitute a specific intent to injure. Even an act that has substantial certainty of producing injury does not rise to the level of specific intent to cause injury.
4. Both Washington's Law Against Discrimination (WASH. REV. CODE § 49.60, et seq.) and the Civil Rights Act of 1964, § 701, et seq. (42 U.S.C. §2000e, et seq.) offer protection to workplace violence which is gender driven, i.e. rape. The Ninth Circuit has held that an employer can be liable under federal and state gender discrimination laws for harassing conduct based on the rape of an employee by a non-employee.
5. Occupational Safety Health Act (OSHA) requires employers to provide their employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees." In a workplace where the risk of violence and serious personal injury are significant enough to be "recognized hazards," the general duty clause of OSHA would require the employer to take reasonable steps to minimize those risks. Failure of an employer to implement feasible means could result in an OSHA violation. On the other hand, the occurrence of violent acts that are not "recognized" as characteristic of employment and represent random antisocial acts that may occur anywhere would not subject the employer to a citation for a violation of OSHA. Therefore, whether OSHA can cite an employer is entirely dependent upon the facts of the situation.
6. Governor Lowry's Executive Order on Domestic Violence and the Workplace applies to all State agencies and institutions of higher learning and provides an avenue for assistance for domestic violence victims without fear of reproach and ensures that personnel policies and procedures are responsive to domestic violence.
7. Criminal laws such as assault, robbery, and homicide.
8. Vicarious Liability. Under the doctrine of respondeat superior, an employer may be liable for its employee's negligence in causing injuries to third persons if the employee was "within the scope of employment" at the time of the occurrence. The test for determining if an employee is acting in the scope of employment is "whether the employee was, at the time of the incident, engaged in the performance of the duties required by him by either his contract of employment, or by specific direction of his employer."
An employer can defeat a claim of vicarious liability by showing that the employee's conduct was (1) intentional or criminal and (2) outside the scope of employment. An employee's conduct will be outside the scope of employment if it "is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." This is not to say that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner. Likewise, an employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable.
9. Negligent Hiring, Retention, Supervision. In Niece v. Elmview Group Home, 131 Wn.2d 39 (1997), the Washington Supreme court said that there may be other bases of employer liability for the criminal conduct of employees apart from vicarious liability. Despite the Court's statement, there is generally no duty to prevent a third party from causing physical injury to another, unless a "special relationship" exists between the defendant "and either the third party or the foreseeable victim of the third party's conduct." Ultimately, whether a "special relationship" giving rise to a legal duty exists involves the balancing of the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, the relationship between the parties, the temptation presented by the act or failure to act, the gravity of the harm that may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take.
To establish negligent hiring, the injured party must establish that: (1) the employer knew or should have known the employee's unfitness at the time of hiring; and (2) the negligently hired employee proximately caused the resulting injuries. Where the injury arises from circumstances other than those reasonably foreseeable by the employer, no claim for negligent hiring can be sustained.
Washington cases have generally held that an employer is not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care, should have known, that the employee presented a risk of danger to others.
10. Both Washington's Law Against Discrimination (WASH. REV. CODE § 49.60, et seq.) and the Americans with Disabilities Act (42 U.S.C. §12101, et seq.) offer job protections to "qualified individuals with a disability" and apply when an employee's mental disorder is a factor in workplace violence. A violent employee is not likely a "qualified individual with a disability." It is also an affirmative defense that this individual poses a significant risk of substantial harm to himself, herself, or others and the individual cannot be reasonably accommodated.
11. Duty to Warn Prospective Employers. In a factually intensive decision, the Washington Court of Appeals declined to hold that a former school district employer owed a prospective school district employer a duty to include a janitor's dismissed charges of child molestation and reprimands in its letters of recommendation. Ultimately, whether a "special relationship" giving rise to a legal duty exists involves the balancing of the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, the relationship between the parties, the temptation presented by the act or failure to act, the gravity of the harm that may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take.
Keeping Violence Out of the Workplace
1. Advise your clients to follow up on final job candidates' references, employment history, and education. Make sure your clients' pre-employment screening processes do not run afoul of anti-discrimination and privacy laws.
2. Have your clients to develop a written workplace violence policy statement to set a standard for acceptable workplace behavior. This policy should be in writing and distributed to employees at all levels.
3. Tell your clients to identify problem situations and risk factors of current employees (e.g. contentious break up of romantic relationship, labor disputes, downsizing).
4. Consider having your clients distribute a questionnaire or survey to obtain their ideas on the occurrence and to further learn of potential for violent incidents.
5. Have your clients develop a post incident response program, including an evacuation plan and threat assessment team, which will be responsible for responding to all reports of violence, threats, harassment, or other events or conduct that may frighten any employee.
6. Advise your clients to conduct a workplace security analysis to determine the presence of hazards, conditions, operations, and situations that may place workers at risk of workplace violence.
7. Inform your clients to train employees at all levels on the workplace violence, including the workplace violence prevention policy, reporting requirements, and the location of safety devices.
8. Notify your clients to develop disciplinary procedures for acts or threats of workplace violence, which may include criminal penalties.
9. Have your clients develop incident reporting procedures for the workplace and to local authorities. Reporting procedures should also include how to properly document the incident.
10. Tell your clients to consider obtaining employee assistance programs.