Counseling Against Violence
An employee-assistance provider recently settled a lawsuit stemming from a fatal 2003 workplace shooting. In addition to enacting proper policies and procedures, HR leaders should make sure their EAPs clearly communicate and address issues of violence when workers are referred.
By Joseph A. Slobodzian
A confidential settlement has ended a federal lawsuit resulting from the 2003 workplace shooting that killed six people in a Lockheed Martin Corp. plant in Meridian, Miss.
On its face it seems like the logical end to another tragic case of workplace violence. But with incidents of workplace violence increasing and some states adopting laws allowing workers to bring guns to the workplace, legal experts say employers cannot afford to think that "it can't happen here."
"There is a lot that HR people can do reduce the threat of these kinds of incidents through pre-employment screening and testing and contacting references," says J. Randall Coffee, an employment lawyer and partner in the Kansas City, Mo., office of the national firm of Fisher & Phillips.
Beyond pre-employment investigations, Coffee says, employers need clear policies on the presence of weapons on company property -- including employee cars in the company lot. (Related story
here
.)
HR executives also need to have employee assistance personnel accessible to workers who may be having anger-control problems. And those EAP workers need to be trained to recognize symptoms of a person who may have a "proclivity to violence," he says.
It was Lockheed's EAP -- not the company itself -- that was the defendant in the recently settled lawsuit resulting from the shooting.
The lawsuit was filed by Erica Willis, the daughter of one of the six people killed on July 8, 2003 by Lockheed employee Doug Williams, who worked at the Meridian plant for 20 years before the incident in which he also took his own life.
Willis sued a Milwaukee employee-assistance contractor, NEAS Inc., which was hired by Lockheed to handle psychological counseling and evaluation of Lockheed Martin employees.
According to the lawsuit, some of Williams' black co-workers had complained for months that he had threatened them and used racial slurs in their presence.
A year before the shootings, the lawsuit stated, Lockheed personnel had told Williams that his continued employment would be contingent on completing a counseling program and referred him to NEAS.
NEAS, in turn, referred Williams to Psychology Associates, an NEAS affiliate located in Meridian. Williams was cleared to return to work in January 2002 after just three counseling sessions.
On July 8, 2003, Williams was at Lockheed Martin attending a mandatory diversity training class. He walked out of the class and returned with a shotgun and rifle and began the rampage.
Psychology Associates was dismissed as a defendant in the suit -- and that element of the case illustrates the importance of clear communication when the employer decides to outsource employee-assistance programs.
According to the lawsuit, NEAS Inc. failed to tell Psychology Associates the full background for the referral, telling the Meridian affiliate that Williams had "boundary/communication issues."
In confirming the mid-April confidential settlement, William F. Blair, the attorney for Willis, says the settlement would resolve all outstanding issues in the case and was motivated by the pain the Willis family was going through as it prepared for the trial.
Carrie Reuter, of NEAS Inc.'s business development team, says the company will not comment on the Lockheed Martin shooting or the settlement of the civil suit.
Coffee says lawsuits resulting from incidents of workplace violence are "very fact specific" and that those where it can be proved that the employer ignored the conduct of a worker known to have a "violent proclivity" are typically the cases that settle.
Coffee says his firm advises employers to train all employees and security staff about the warning signs exhibited by a disturbed and potentially violent employee and to create a process that makes it easy for the employee's co-workers to report those warning signs.
Adds Ryan K. Buchanan, a lawyer in the employer services group of the Charlotte, N.C., office of Helms Mulliss & Wicker: "Employers should begin by rejecting the dangerous assumption that their work environment is immune from violence."
While larger companies have put in place policies to protect workers from becoming victims of on-the-job violence, Coffee says he believes most companies are "flying on the seat of their pants."
According to the report of a 2004 conference sponsored by the U.S. Centers for Disease Control and Prevention and the National Institute for Occupational Safety and Health, violence has been recognized as the leading cause of occupational mortality and morbidity since the 1980s.
On average, 1.7 million workers are injured each year, and more than 800 die as a result of workplace violence, the report states.
The data suggest that employers face a significant risk of being held liable for the death or injury of their workers by a disgruntled or deranged co-worker who brings a weapon into the workplace.
"Employers should bear in mind that the absence of specific legal regulations telling them how to guard against workplace violence will not shield them from potential liability when bad events occur," Buchanan writes in a recent newsletter.
And the landscape has been made rockier in some states where the legislatures, pressured by pro-gun lobbies, are considering so-called "forced entry" laws: legislation that lets employees bring their gun to work as long as it remains locked in their vehicle in the company parking lot.
"Gunfight at the OK Courthouse," was what Coffee and associate Jennifer Webb called it in a January article in the labor newsletter published by Fisher & Phillips.
Coffee and Webb wrote that since 2005 six states -- Minnesota, Kansas, Nebraska, Kentucky, Tennessee and Alaska -- have enacted laws that let employees keep guns locked in their cars at work regardless of their employer's policies. Florida just passed a similar law as well.
Model legislation, much of it drafted and advocated by the National Rifle Association, has been introduced in such states as California, Texas, Georgia, Missouri, South Carolina, Indiana, Louisiana and Alabama.
Oklahoma legislators tried to ease the fears of employers in 2005 by passing amendments to its law that would give companies protection from liability from workplace gun violence resulting from the law.
But ConocoPhillips challenged the Oklahoma law in federal court because the state law still threatened criminal penalties for companies that did not comply. A federal judge agreed, ruling that the Oklahoma law was pre-empted by a provision of the U.S. Occupational Safety and Health Act that imposes a general duty on employers to protect their employees from "workplace violence."
Despite the unsettled state of the workplace gun laws in other states, Coffee and Webb write that "our continuing advice is that employers adopt policies prohibiting weapons in the workplace."
May 8, 2008 Copyright 2008© LRP Publications
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