The following is the handout I’m providing to attendees of NISHRM’s 11/10/05 Legal Update breakfast. My handout isn’t a reiteration of my presentation. The handout is merely intended as a supplement to my presentation and a resource. Hopefully, my presentation will be solely Q & A and discussion as I hate to lecture.

© 2005 The Human Resource Store & Charles Krugel, All Rights Reserved

NISHRM LEGAL UPDATE
NOVEMBER 10, 2005

HANDLING EMPLOYEE DISRUPTIVE BEHAVIOR

PRESENTED BY CHARLES KRUGEL
DIRECTOR OF LEGAL & COMPLIANCE SERVICES FOR
THE HUMAN RESOURCE STORE

Presentation Handout

1) Some Statistics
2) Costing Workplace Disputes/Disruptions
3) Legal Liability-When is the Employer Liable? What’s the Employer’s Cost?
4) Some Definitions of Disruptive Behavior?
5) What Are Some Indicators of Disruptive Behavior?
6) How to Respond to Disruptive, Threatening or Violent Behavior
7) The NLRB Has an Unusual Perspective
8) Free Online Resources
9) A Final Thought

DISCLAIMER: THE CONTENT CONTAINED IN THIS DOCUMENT IS GENERAL INFORMATION AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. IT IS NOT DESIGNED TO BE AND SHOULD NOT BE RELIED UPON AS YOUR SOLE SOURCE OF INFORMATION WHEN ANALYZING AND RESOLVING A SPECIFIC LEGAL ISSUE. EACH FACT SITUATION IS DIFFERENT AND THE LAWS ARE CONSTANTLY CHANGING. IF YOU HAVE SPECIFIC QUESTIONS REGARDING A PARTICULAR SITUATION, YOU SHOULD CONSULT WITH COMPETENT LEGAL COUNSEL.

1) Some Statistics

The following numbers aren’t intended as an all-inclusive report regarding occupational injuries and fatalities. These numbers merely illustrate the impact of workplace disruptive behavior.

The statistics indicate that the number of violent workplace incidents is rising. In part, this is due to the definition of workplace violence broadening to include homicides, physical attacks, rapes, other assaults, threats, intimidations, coercion and most forms of harassment and hostile environment. In the past, the definition related largely to violent crimes and behaviors.

According to the Bureau of Labor Statistics (BLS, www.bls.gov), which is part of the U.S. Department of Labor, in 2004, there were 5,703 workplace related fatalities. This was up from 5,575 in 2003. From 1992-2004, the most common causes of workplace related fatalities were highway incidents, homicides, falls and being struck by an object. However, work related homicides have decreased by 42% from 1994-2003.

Workplace suicides tend to be highest among white, male workers, 55 and older, and those who are self-employed.

Per the BLS, from 1993 to 2002:

  • 175 workers were killed from accidental gunshot wounds while working. This represents .3% of the 61,146 workplace related fatalities from 1993-2002. This includes all occupations-military, law enforcement, etc.
  • About 94% of these fatalities were men and 69% of these men were white
  • White workers accounted for 73% of all workplace related fatalities from 1993-2002
  • 72% of those killed by accidental gunshot wounds were between the ages of 18 and 44
  • 56% of all workplace fatalities were between the ages of 18 and 44
  • Approximately 2/3 of all workers killed by accidental gunshot wounds were private sector employees and about 17% of those were in the retail industry

A 2004 survey by the American Society of Safety Engineers indicates that 1% of U.S. employers have a formal antiviolence policy. However, 90% of respondents indicated that their company has a policy addressing weapons in the workplace. Yet, only 58% of respondents said that they have training on how to identify the warning signs of violent behavior; i.e., 42% indicated that they don’t train. 755 employers responded to this survey. The ASSE is a Des Plaines, IL based organization; more information is available at www.asse.org.

The National Safe Workplace Institute estimates that employers lose $4 billion annually due to missed days of work and legal costs.

In cases, awards or settlements, the amounts paid by employers or insurance companies have ranged from thousands of dollars to $850,000 and even $7,900,000.

2) Costing Workplace Disputes/Disruptions

Some Factors to Consider:

  • The average number of hours per week each employee spends involved in conflict/dispute resolution times the hourly wage of those employees
  • Estimate the reduction in employees’ job motivation, enthusiasm and loyalty as a result of unresolved conflict (use whatever formula you wish)
  • Number of unscheduled or scheduled personal days taken off by employees due to disruptive behavior; the monetary cost of these days
  • Turnover and cost of turnover resulting from these disruptions. Determinable via a number of factors (e.g., quit, fired, early resignation, demotion/promotion) which results in turnover.
  • Duration of time of the conflict from start to finish
  • ROI – return on investment of employer’s investment in labor. Loss of ROI. This is usually a macro factor
  • Cost of any counseling, consulting and treatment
  • Time and money spent on investigation
  • Cost of any changes or purchases of equipment or services to improve security and compliance
  • Cost of any damage to equipment
  • Loss of institutional knowledge via attrition
  • Legal and other monetary costs

3) Legal Liability – When is the Employer Liable? What’s the Employer’s Cost?

Intentional tort liability might exist when the cause of an injury is intentional or even accidental. Moreover, liability is further indicated and compounded if the employer does not act to prevent or eliminate a known threat, or the employer doesn’t act on a threat it should have or could have known of.

Liability is further incurred if: The employer was negligent, acted with intentional disregard, inadequate security, negligent failure to warn, negligent hiring, negligent retention or negligent supervision.

An employer’s duty to protect employees from the criminal acts of other employees or parties arises from the employer’s express or implied promise to provide a safe and secure work environment. Once an employer is found to have assumed a duty to provide security, the employer is bound to exercise the duty with reasonable care. Failure to do so creates liability if harm arises.

In an Illinois case (Granite City Steel), $415,000 was paid by the employer as a result of an employee being fatally shot in the employer’s parking lot. The court ruled that security was “grossly inadequate.” The lesson is that as an employer, if you take some sort of action to provide security or training for employees, make sure you do it right. Don’t be negligent or superficial. As a starting point, it’s a good idea to examine commonly accepted industry standards, make a good faith effort and do due diligence.

In the $7.9 million case, two North Carolina employers were negligent in providing security when three supervisors were killed because a fired employee went on a workplace shooting spree. Prior to the shootings, the fired employee threatened to return to the workplace and to take people down with him. Moreover, after the employee’s third workplace altercation in four years, the employee was referred to a psychologist via the company’s employee assistance program (EAP). The psychologist reported that the employee posed no threat.

Additional fines may be imposed by OSHA if there’s a determined violation of the Occupational Safety and Health Act. Per the Act’s General Duty Clause (Section 5(a)(1)): Employers must provide employees with a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.”

Legal protection begins with knowing what’s going on in the workplace, recognizing and responding to a problem behavior, and making every effort to provide employers with a safe work environment. Many of the most common legal liabilities are related to an employer turning a blind eye to repeated threats, intimidation and other festering problems that eventually explode into violent acts. Pay attention to gossip. You don’t necessarily have to act on gossip, or contribute to it, but when something “catches your eye” look into it. Essentially, there’s no worse thing an employer can do than failing to act.

Focus on prevention and proaction.

4) Some Definitions of Disruptive Behavior?

It’s verbal or non-verbal behavior that: Demonstrates disrespect to others in the workplace; or affects or has the potential to adversely impact the workplace; or reflects a misuse of a power imbalance between employees or visitors. It’s intimidating, threatening or violent behavior in the workplace which creates an unhealthy work environment.

Consequently, not all intimidating or threatening behavior is disruptive (e.g., some managers use intimidating or threatening behavior to motivate certain employees). Furthermore, venting isn’t necessarily disruptive, threatening or intimidating.

Disruptive behavior disturbs, interferes with or prevents normal work functions or activities. Examples: yelling, using profanity, waving arms or fists, verbally abusing others, and refusing reasonable requests for identification.

Disruptive, and obstructive, threatening or intimidating behavior, includes physical actions short of actual contact/injury (e.g., moving closer aggressively), general oral or written threats to people or property (“you better watch your back” or “I’ll get you”) as well as implicit threats (“you’ll be sorry” or “this isn’t over”).

Violent behavior includes any physical assault, with or without weapons. It’s behavior that a reasonable person would interpret as being potentially violent (e.g., throwing things, pounding on a desk or door, or destroying property), or specific threats to inflict physical harm (e.g., a threat to shoot a named individual).

OSHA’s 1996 Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers defines workplace violence as any physical assault, threatening behavior, or verbal abuse occurring in the workplace.

5) What Are Some Indicators of Disruptive Behavior?

  • Upset over recent events, work or personal crisis
  • Recent drastic changes in behavior, demeanor or appearance
  • Withdrawal from normal activities, family, friends or coworkers
  • Intimidating, verbally abusive, harasses or mistreats others
  • Challenges or resists authority
  • Blames others for problems in life or work; suspicious, holds grudges
  • Use or abuse of drugs, alcohol, etc.
  • Unwelcome obsessive romantic attention
  • Stalking
  • Makes threatening or bizarre references to other incidents of violence. E.g., “the Unabomber is a cool guy;” or “I’m working on a cookbook of Jeffrey Dahmer’s recipes, no really I am”
  • Makes threats to harm self, others or property
  • Weapons – has or is fascinated with weapons
  • Past behavior as a predictor of present or future behavior; prior history of trouble
  • Has communicated/published specific proposed acts of disruption or violence
  • Employee is isolated or a loner
  • Employee acts morally superior or self-righteous
  • Feels entitled to special rights and that rules don’t apply to them
  • Feels wronged, humiliated and degraded; wants revenge
  • Feels without choices or options for action except violence
  • Bad attitude (see below)

*When gauging an employee’s attitude focus on explicit behavior or conduct. Attitude is generally nebulous and can be difficult to describe. Actions, words and conduct aren’t nebulous and are easy to describe.

6) How to Respond to Disruptive, Threatening or Violent Behavior

Micro and Macro

Micro situations. On a situation-by-situation basis what should you do?

The key is communication.

The following are some ideas about responding to situations as they occur. This isn’t intended as an all-inclusive regimen or a mandatory protocol and is malleable.

General responses to disruptive behavior when no threats or weapons are present:

1. Respond quietly and calmly. Try to defuse the situation.
2. Do not take the behavior personally. Usually, the behavior has little to do with you, but you are used as a target in the situation.
3. Ask questions. Respectful and sincere concern and interest may demonstrate that aggression isn’t necessary.
4. Consider offering an apology. Even if you’ve done nothing wrong, an apology may calm the person and encourage cooperation. E.g., “I’m sorry to hear that this happened. What can be done to solve the problem?”
5. Summarize what you hear the individual saying. Make sure you are communicating clearly. In a crisis, a person feels humiliated and wants respect and attention. Your summary of the individual’s concerns reflects your attention. Focus on areas of agreement to help resolve the concern.

If the above measures don’t stop the disruption, assess whether the individual seems dangerous. If in your best judgment he/she is upset but not a threat, set limits as to what will happen and what can be done. Seek assistance as necessary.

1. Calmly and firmly set limits. E.g., “please lower your voice. There will be no disruptions here.” “Please be patient so that I can understand what you need and try to help you.”
2. Ask the individual to stop the behavior and warn that official or further action may be taken.
3. If the disruption continues despite a warning, tell the individual that they can be disciplined or prosecuted, state that the discussion is over, and direct them to leave the area. “Please leave now. If you do not leave, we will call the police.”
4. If the individual refuses to leave after being directed to do so, state that refusal is also a violation subject to discipline, exclusion from work, or arrest.

If the above is ineffective and the individual seems dangerous then try the following:

1. Find a quiet, safe place to talk, but do not isolate yourself with an individual you believe may be dangerous. Maintain a safe distance, do not turn your back, and stay seated if possible. Leave the door open or open a closed door, and sit near the door. Be sure a coworker is near to help if needed.
2. Use a calm, non-confrontational approach to defuse the situation. Indicate your desire to listen and understand the problem. Allow the person to describe the problem.
3. Try not to touch the individual yourself to try to remove him/her from the area. Even a gentle push or holding the person’s arm may be interpreted as an assault by an agitated individual who may respond with violence towards you or file a lawsuit later.
4. Set limits to indicate the behavior needed to deal with the concern. “Please lower your voice;” “please stop shouting (or using profanity) or I’ll have to ask you to leave.”
5. Signal for assistance. The individual may be antagonized if you call for assistance so use a prearranged “distress” signal to have another staff member check on you to determine how you are. If you need help, the coworker should alert your supervisor and/or the police.
6. If you fear an angry or violent response, do not mention discipline or the police.
7. If the situation escalates, find a way to excuse yourself, leave the room/area and get help. “You’ve raised some tough questions. I’ll consult my supervisor to see what we can do.”

Macro Situations & Responses

These are initiatives, policies and practices to prevent problems from occurring and to guide responses when micro issues arise.

Here are two key points:

(1) Integrate any policies and procedures with your overall handbooks and manuals. Standalone policies are cumbersome and create bureaucracy.
(2) Train everyone at all levels on these policies and procedures and have them sign training acknowledgement forms. Legally speaking, it’s generally not enough to have the policies without the training. The depth of training (i.e., length of time, topics covered, who trains, etc.) is debatable.

Policies and procedures should be periodically audited; e.g., once every year, every 18 months or every 2 years. What’s appropriate depends on the size of the company, how many complaints are received, and whether any legal liability has been previously incurred.

Employers should have:

  • Clear policies in respect to workplace behavior. Delineate and define what’s inappropriate and won’t be tolerated; avoid legalese
  • Programs to raise awareness of workplace behavior expectations among all workers
  • Multiple mechanisms for reporting disruptive behavior without fear of retaliation
  • Means for the non-adversarial resolution of workplace conflict
  • Awareness of and referral or access to educational programs designed to achieve behavioral change and personnel who exhibit disruptive workplace behavior
  • Application of progressive discipline, or alternative actions, to employees exhibiting significant and persistent disruptive behavior and are resistant to non-punitive measures. Alternative actions include referral for counseling, training or education in dispute/conflict resolution, EAP, and transfer or demotion
  • A willingness to terminate the employment or contractual engagement of personnel who are persistently disruptive and are resistant to lesser actions or sanctions
  • Address issues promptly, before they escalate
  • Don’t get too caught up in emphasizing systems and processes. These policies should be about people and productivity. When appropriate, be flexible. Try to do right by employees

Dealing With Performance Problems or Conflicts:

  • Intervene promptly; don’t let the situation fester
  • Be clear about the facts of the problem; speak plainly and directly; avoid legalese
  • Ask individuals involved to describe their perceptions of the problem
  • Set clear expectations for improvement in job performance or in the relationship
  • Assess additional needed resources. Seek outside help as necessary
  • Followup to be sure that your expectations are met and directed changes are made

Here’s something else to consider: Allow employees to request for the purging of disciplinary actions from their employee file after a specified time period. For example, someone who was verbally threatening to another employee could have their record expunged after six months of no disciplinary action. Such expunging only works for certain offenses. Expunging could occur after 6, 12, 18 or more months of good behavior. Advantages to file purging include that it shows the employer’s confidence in its employees’ ability to rehabilitate and remain rehabbed, it’s less bureaucratic and it rewards good behavior and improved conduct.

Also, encourage employees to review their files periodically. This encourages and emphasizes an open and trusting workplace. It could also help to ensure accountability.

Supervisors must understand that unacceptable behavior doesn’t just mean breaking the formal rules of the organization. Rules or not, if the activity disrupts the efforts of the team, it’s unacceptable. Failure to adequately address disruptive behavior implies that the supervisor or company condones the activity. The longer the wait for action, the stronger the negative reaction is going to be from the employee when they’re finally confronted. Other employees will also wonder why it took the supervisor so long to address long-standing unacceptable behavior.

7) The NLRB Has an Unusual Perspective

The National Labor Relations Board (NLRB) has stated that overly broad civility policies and conduct rules, which don’t define terms and prohibited actions, violate the National Labor Relations Act (NLRA).

In Adtranz ABB Daimler, 331 NLRB No. 40 (2000), the NLRB ruled that section 8(a)(1) prohibits “overly broad” civility policies (“Rules of Conduct”) and solicitation and distribution policies that don’t define abusive or foul language and inappropriate conduct, because they restrict speech. This applies even in the absence of unions or union organizing. In essence, almost all speech is protected by the Adtranz ruling.

In Adtranz, which involved Adtranz Inc., a Pittsburg, CA, a non-union facility owned by Daimler-Benz, the company was undergoing campaign by a machinists union. The employer instituted a policy prohibiting profane and abusive conduct and soliciting and distribution without authorization. The union filed an unfair labor practice (ULP) charge which led to this litigation. Fortunately, the U.S. Court of Appeals for the D.C. Circuit reversed the NLRB’s decision on the grounds that the NLRB was being ridiculous (Adtranz, No. 00-1282, 6/26/2001).

In order to provide additional context, in a 1998 case (Lafayette Park Hotel, 326 NLRB 834, 1998), the Board said that a rule against making false, vicious, profane or malicious statements toward or concerning the employer or any employee was lawful because the prohibited conduct was well defined and explicit in terms.

The problem with Adtranz is that the Board wrapped the company up in litigation for a few years because of the union’s ULP charge. The lesson for employers is to define terms and be explicit in your civility and conduct policies. This applies regardless of the employer’s union or nonunion status.

8) Free Online Resources

There’s a great deal of free high quality information available on the Internet. Many companies, universities and other organizations post their policies on the Web.

When using search engines such as Google or Yahoo it may be helpful to know what search terms to use. When using the following terms, use quotation marks as they help to reduce the number of frivolous hits. Also, combine terms to reduce excessive and irrelevant hits. The following terms are not all-inclusive and are only suggestive. Search terms:

  • “workplace violence”, “disruptive behavior”, workplace, prevention, “workplace conduct”, “workplace behavior”, workplace harassment”, “occupational safety”, “discipline policies”, “discipline procedures”, “workplace investigations”, policies, procedures, practices, assaults, “free download”, “free downloads”, “sample policy”, “sample policies”, free

Some resources include:

9) A Final Thought

The workplace is probably the most common place where Americans congregate. We socialize and develop friendships and even romantic relationships. It’s unrealistic, expensive and perhaps impossible to try to regulate all behavior and define all prohibitive forms of conduct. Consequently, exercise common sense and don’t over act or over react. Carefully listen to your employees and encourage them to talk. It’s better to let employees vent about issues then to repress. The key is to provide for prompt, appropriate and easy avenues of communication and resolution.