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Stewart: Workplace Violence Prevention Act raises questions for businesses

Published: Sunday, Feb. 2, 2014 5:20 a.m. CDT

A new law enables most employers to seek an order of protection, commonly called an OP, on behalf of its employees in certain situations. The Workplace Violence Prevention Act can be used by an employer if one of its employees has already suffered violence (including harassment and stalking) or received a “credible threat of violence” at the place of work, or if the threat can be reasonably foreseen to occur at the place of work. A credible threat of violence is defined as a “statement or course of conduct that does not serve a legitimate purpose and that causes a reasonable person to fear for the person’s safety or for the safety of the person’s immediate family.”

An obvious scenario would be if a disgruntled bank customer or credit union member informs a teller that he will return with a firearm if his overdraft fees are not refunded. The act would allow the bank or credit union to obtain an OP against the person, on behalf of its staff, because the threatened violence clearly pertains to the work place. Similarly, if an employee is disciplined or terminated because of a threat she made or a violent act she committed to a coworker, the employer would be able to file an OP to protect the coworker.

The Bureau of Justice estimates more than 1 out of every 200 private sector employees will be the victim of workplace violence in any year, based on a ten year statistical analysis. Retail and medical workers are the most likely victims. The public sector rate is much higher; more than 1 out of every 50 public sector employees will be a violent crime victim in a year based on the same analysis, with law enforcement and security workers comprising more than half of those occurrences. Even though workplace violence has declined over the past twenty years, the frequency at which it happens should still be a concern.

To obtain an order of protection, the employer must file an affidavit that articulates violence or a credible threat of violence has occurred and that “great or irreparable harm” has or is likely to be suffered.

A few questions arise out of the act and its applicability to certain situations. One issue is that “place of work” is not defined, and so it is not clear if an employer could seek an OP for an employee who would likely be targeted while conducting business travel, commuting to/from work, or working from home. A delivery or repo person, for example, may face threats that are likely to be committed at the threatener’s residence or place of business.

Another issue, as it pertains to businesses, is how the act may influence company liability. Employers already have a general duty to protect employees from known dangerous situations, including those arising from an identified violent person: employee or customer/visitor. Yet the language of the act makes obtaining an OP permissive, not mandatory: the employer may obtain an OP. To what extent does an employer obtaining an OP indicate the employer took reasonable measures to protect its employee if that employee suffers a violent act? Conversely, can failure to seek an OP for an employee be used as evidence against a company? Until courts have applied the act to actual cases, many issues will remain unclear.

The best practice will be for employers to seek an OP on behalf of employees in any situation that the employer can at least arguably obtain one. However, businesses should assume their duty to protect employees from foreseeable harm does not end by obtaining an OP, and that an OP is simply one of many available steps to prevent foreseeable harm to employees that should be integrated into a broader workplace violence prevention policy.

• Brad Stewart is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Stewart devotes most of his practice to corporate and local government law. He can be reached at bstewart@zrfmlaw.com. 

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