ANTICIPATING AND RESPONDING TO POTENTIAL WORKPLACE VIOLENCE

1. ANTICIPATING AND RESPONDING TO POTENTIAL WORKPLACE VIOLENCE Mark A. Lies II(312) 460-5877mlies@seyfarth.com

2. Chicago Office(312) 460-5877mlies@seyfarth.com Areas of Practice LitigationProduct LiabilityConstructionSafety and Health Litigation, ConstructionWorkplace ViolenceEmployment LawEnvironmental, Safety & Toxic TortsOSHA Experience Mr. Lies is a partner in the Chicago office. His practice areas include product liability, occupational safety and health, workplace violence, construction litigation and related employment litigation which arises in these areas. He has developed related expertise in defending employers against claims of inadequate hazardous materials and fire safety response. Mr. Lies has advised numerous clients on a national basis from 1975 to the present on compliance with federal OSHA regulations for the control, removal, and handling of asbestos. Because of his work in this industry, he has defended related toxic tort litigation involving exposure to hydrogen sulfide, benzene, lead, silica, and other toxic substances. He is an adjunct member of several national safety organizations including the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA). He has written extensively on workplace violence and is the Editor of Preventing and Managing Workplace Violence, ABA Publication, 2008 Education J.D., DePaul University School of Law (1974)B.A., University of Notre Dame (1968) Mark A. Lies II

3. Program Objectives Defining Workplace Violence Discuss Legal Duties and Rights Developing Workplace Violence Policies Predictors of Workplace Violence Responding to a Hostile Employee or Other Threat

4. Workplace Violence by the Numbers Employers spend $4.2 Billion/year due to workplace violence. More than 1000 homicides occur at work each year. Most common type of workplace victimization is simple assault. Domestic violence is the 3rd leading source of conflict leading to death in the workplace.

6. Defining Workplace Violence “Violence” means the attempted, threatened, or actual conduct that causes and/or is likely to cause injury, including any threatening statement or behavior which gives an employee reasonable cause to believe that he/she or other worker is at risk of injury.

7. Defining Workplace Violence Type I Individual with no connection to workplace commits a crime. Type II A violent act by an individual directed to an employee at the workplace by customer/client. Type III Violent act by a current/former employee directed at another employee. Type IV Violent act at the workplace by a another person who has a relationship with an employee.

8. Legal Duties • Title VII Civil Rights Act • Prevention of Workplace Harassment which may lead to violence • OSHA • Safe Work Environment • Common Law • Negligent Hiring, Negligent Retention, Negligent Supervision, Negligent Training, etc. • Workers’ Compensation • Protection for Victims of Domestic Violence

10. Legal Limitations • Americans With Disabilities Act • Disability v. Behavior • Pre-Employment Inquiries • Reasonable Accommodation • Background Checks • Employee Privacy and Fair Credit Reporting Acts • Defamation, False Light, Wrongful Termination

11. Legal Limitations • Criminal History • Polygraph Tests • Drug Testing • Paper and Pencil Testing

12. OSHA ENFORCEMENT General Duty Clause, Section 5(a)(1) of the OSH Act • Management Commitment and Employee Involvement • “Zero Tolerance” (but not necessarily automatic termination) • Worksite Analysis • Hazard Prevention and Control • Safety and Health Training

13. ELEMENTS OF AN EFFECTIVE ANTI-VIOLENCE POLICY • Clear Statement of Policy • “Zero tolerance” • Definition of prohibited acts or threats (include bullying) • Examples of prohibited acts or threats • Responsibility to report acts or threats • Encouragement of EAP use • Identification of Response Team (Security, HR, Legal, Management, Psych Consultant)

14. ELEMENTS OF AN EFFECTIVE ANTI-VIOLENCE POLICY (cont.) • Response Plans – (Weapons?) • Early Warning Signs (with caveats) • Actions as Indicators (with caveats) • Managers’ Responsibilities • Communicate Policy to Employees • Know Response Team and Plan • Be Alert to Warning Signs • Seek Advice or Assistance from Team

15. Managers are wrong only if they… • Don’t Consider Safety First • Don’t Ask the Right Questions • Don’t Communicate Concerns Clearly and Early

16. Potential Problem Sources: • Mishandled Termination or Discipline • Disgruntled Former Spouses or Significant Others • Weapons or Drugs on work site • Retaliation by “Accused” • Inadequately Trained or Overzealous Security Personnel

17. Guns in the Workplace Carrying Concealed Weapons (CCW) laws set forth the requirements for an individual to carry a concealed firearm in public—vary by state. Most states now allow citizens to carry concealed weapons in public. (Only DC does not). Employers must consider their policies with respect to guns in employee cars or in the workplace. Policies will require a state-by-state analysis.

18. Puberty Exhaustion Psychosis Schizophrenia Hormones History of Abuse Traumatic Situation Divorce Brain Tumor Depression Menopause Senility PMS Personality Disorder Health Problems Stress Adolescence Grieving Poor Social Skills ADD Brain Damage Bipolar Disorder PTSD Anniversary of Loss High Fever Diabetes Fear Mid-Life Crisis Amnesia Thyroid Problems Personal Problems Stroke Illegal Drugs Holidays Medication Alcohol Religious Zeal Epilepsy Crisis

19. Most Common Characteristics That Contribute to Violence Personal Factors Alcohol Aggressive History Low Self Esteem Lack of Social Support Dysfunctional Personality Traits PLUS

20. Most Common Workplace Factors That Cause Violence Workplace Factors Perceived Injustice/ Mistreatment Job Insecurity/ Elimination Electronic Monitoring PLUS

21. Inevitable Workplace Interactions Interactions LEADS TO

22. Personal Factors WORKPLACE VIOLENCE Workplace Factors Interaction

23. Universal Needs • We Seek Connection with Others • We are Saddened by Loss and try to Avoid It • We Dislike Rejection • We do more to Avoid Pain than we do to Seek Pleasure • We Dislike Ridicule and Embarrassment • We Care what Others Think of Us • We Seek a Degree of Control over our Lives

24. Problematic Behaviors That Warrant Concern & Consultation • Erratic Emotions • Alcohol/Substance Abuse • Bizarre Actions and Thoughts • Verbal Abuse & Argument • Paranoia

25. Problematic Behaviors That Warrant Concern & Consultation • Co-Worker Fear • Hopeless Statements or Actions • Expressions of Intent to Harm • Provocative Communications • Refusal to Obey Policies or Procedures

26. Problematic Behaviors That Warrant Concern & Consultation • Grievances • Police Encounters • Media • Inappropriate Focus • Continued Contact • Identification • Unrealistic Expectations

27. Distances for Normal Social Interactions • Public • 12 or more feet • Social • 4-12 feet • Personal • 2-4 Feet • Intimate • Direct Contact, 1-2 feet • Distance should be appropriate for the situation • Attackers can cover 21 feet in 1.5 seconds

28. Actions to Reduce Violence Potential if Confronted • Project Calmness • Be Empathetic • Ask Questions • Focus on Employee’s Concerns • Acknowledge Employee’s Feelings • Stay Near an Exit

29. Actions to Reduce Violence Potential if Confronted • Use Delaying Tactics to give Employee more time to calm down (offer water, etc.) • Be Reassuring (break big problem into smaller, manageable problems) • Ask for Employee’s Recommendations (repeat back requests) • Calmly Explain the Consequences of any Violent Behavior

30. Dealing with an Aggressive Employee • Observe • Listen • Avoid Defensiveness • Acknowledge Emotions with Thought & Support • Avoid an Audience • Establish Boundaries • Speak Slowly, Softly, and Clearly • Ask Questions

31. Dealing with an Aggressive Employee • State Consequences of Violence • Keep Adequate Distance • Remove Potential Weapons from Area • Have Second Party Available/Present • Alert Security or Police if you FEELin Danger • Do Not Allow Employee to Sit between You and the Door

32. Behavioral and Pre-Attack Cues • Increasing Level of Agitation • Excessive Emotional Attention Toward You • Conspicuously Ignores You • Facial Color Changes to Flush • Changes from Total Lack of Cooperation to Cooperation (Set-up for Attack?)

33. Behavioral and Pre-Attack Cues • Shifting Feet to Boxer’s Stance • Clenched Fists • Target Glance - Looking for a Weapon to Use • Conspicuously Looking Elsewhere while talking with you (Attempt at distraction or looking for escape route?) • Depersonalizing Stare

34. Dealing with an Aggressive Employee • If You See a Weapon, Leave Location and Call for Help • If you Cannot Evacuate, Find a Hiding Place (lock doors, close blinds, move furniture in front of door to block entry, mute your cell phone, turn off lights/radios/electronics) • If the Person enters the room, if appropriate and able, use self-defense. • When you Evacuate, keep your hands up and clearly visible and do not hold anything in your hands. Make no sudden movements and follow law enforcement instruction. • Establish a Pre-Arranged Distress Call • Rehearse Procedures for Calling Police and/or Security • Maintain a List of Employees who have been terminated for hostile behavior and prohibit their entry on to the Work Site.

35. Awareness Level is Critical to Avoid Attack • Easier to Stay out of Trouble than to Get out of Trouble (Avoid Confrontations.) • Be Aware of Surroundings • Most Muggings Occur Between 4pm and 6pm when Leaving Work because Awareness Levels are lower.

36. Bomb Threats • Increasing Frequency • Several Sources (Disgruntled Current or Former Employees or Their Associates; Outside Elements, Union Sympathizers, Environmental Activists, Impaired Individuals) • Key Element: Timely, Focused Response

37. Bomb Threats • OSHA Requires Emergency Action Plan to Respond to Workplace Emergencies, Such as Fires, Severe Weather (29 CFR 1910.38) • Training of Employees in How to Evacuate • Identify Who is in Charge of Plan • Means of Notifying Employees (Alarms, Public Address) • Identify Employees Critical Jobs If you see a suspicious package, call authorities.

38. Thank You. 18099431.1