Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Tensions appear to be running hot across the nation during this polarized election season and time of political and social unrest. Concerns around racial injustices, police reform, responses to and mitigation of the spread of the COVID-19 pandemic, the makeup of the Supreme Court and the integrity of the electoral process are just a few of the emotionally charged topics on the minds of many employees. These controversies are inflamed by extensive news coverage across traditional and social media. Unfortunately, heated debates over divisive political and social issues can escalate quickly into arguments, threats, and even violence that may spill into the workplace. As the November 3rd election draws near, and even after the dust settles, employers should consider taking proactive steps to help minimize the risks of workplace disruptions and violence. This Insight addresses employers’ legal obligations to provide safe workplaces and suggests strategies to help prevent workplace violence during these turbulent times and into the uncertain future.
Employers Have a Legal Duty to Provide a Safe Workplace
As an initial matter, the federal Occupational Safety and Health (OSH) Act requires covered employers to provide a safe workplace, free from recognized hazards that cause or are likely to cause death or serious physical harm to employees. According to the Occupational Safety and Health Administration (OSHA), the federal agency charged with enforcing the OSH Act, workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening or disruptive behavior that occurs at a work site. This includes verbal threats as well as physical acts, and can involve employees, customers, vendors, and visitors. Note also that many states have adopted laws to address workplace safety, so it is important for employers to be familiar with applicable state laws as well.
Promote a Violence-Free Workplace Culture
A key strategy for providing a safe workplace is for employers to promote a violence-free workplace culture, where employees feel safe to perform their best work without worrying about being intimidated, harassed, threatened, or injured. Company cultures that embrace diversity and inclusion include respect for the fact that employees may come from different backgrounds and may have differing perspectives on a wide variety of political and social issues. Employers should make employees aware that they have the right to avoid engaging in workplace conversations and communications concerning controversial topics that are unrelated to the terms and conditions of their employment. As the election draws near, employers should consider whether they want to ban election discussions, masks with political slogans, and other things that may provoke fights in the workplace. Before doing so, employers should consult counsel, as state law can impact bans on political speech, and determining what insignia, messages, and discussions constitute “political” speech is not always cut and dried. Employers with employees who interact with the public also should take steps to ensure that they are not subject to offensive comments or violent behavior from customers or other third parties in the workplace, such as confrontations over mask-wearing requirements.
Adopt and Communicate Policies and Procedures Prohibiting Threats, Harassment, Intimidation, and Violence
Another key strategy employers can implement to promote a violence-free culture and to minimize the risk of violence is to adopt and to communicate written policies and procedures that expressly prohibit workplace threats, harassment, intimidation and violence. These policies should include encouraging employees to report behaviors and communications that could lead to violence. Often styled as having “zero tolerance,” such policies also may include the employer’s commitment to maintaining a safe environment, definitions of workplace violence, examples of what constitutes workplace violence and a description of prohibited weapons. It is advisable for such policies to inform employees that violations may result in disciplinary action, up to and including employment termination. Employers that adopt and maintain policies aimed at preventing workplace violence should ensure that they communicate them to employees regularly and enforce them consistently. Employers should update existing workplace violence policies to cover non-employee violence as well, making employees aware of the company’s procedures for reporting and responding to threats and aggressions by customers, clients, and vendors. Given that state laws can vary regarding many topics often addressed in policies related to workplace violence, such as criminal background checks, guns on employers’ property and protections for victims of domestic violence, employers should be familiar with applicable state laws when developing and enforcing such policies.
See Something, Say Something
Employers should encourage employees to report suspicious or threatening behavior or communications that constitute or could be a precursor to workplace violence. Examples of behavior employers should encourage employees to report include: threats of violence by co-workers, customers, or vendors (whether made in-person, electronically, or even over social media), significant changes in a co-worker’s personality, a co-worker’s communication that they are contemplating suicide, or knowledge of a co-worker who is experiencing domestic violence (which often spills into the workplace). Employers should reassure employees that concerns will be investigated promptly (without retaliation and in as confidential a manner as possible), and that appropriate action will be taken when warranted. Employers must take such concerns seriously and conduct prompt and thorough investigations. Employers can offer employees access to an employee assistance program (EAP) that may provide or direct employees to helpful services including mental health and suicide prevention counseling. Employers should be especially vigilant to monitor the workplace leading up to and immediately after the upcoming election and in the wake of emotionally charged news events.
Review and Revamp the Safety and Security Features of Physical Working Environments
Along with policies and procedures that promote a violence-free workplace culture, employers should review the safety and security features of each workplace location and shore up any vulnerabilities. Depending upon the nature of the workplace and workforce, such measures may include establishing or updating facility access controls, installing security cameras, reviewing job descriptions to ensure that duties and responsibilities for workplace safety and security are defined clearly and establishing response protocols in the event of workplace violence. Employers also may consider forming a safety and security management team charged with implementing, reviewing, and managing issues related to workplace safety and security. Such a team can assist the employer with assessing and implementing the employer’s preventive policies and procedures and can establish a comprehensive plan for doing so. One key aspect of such a plan should include establishing a liaison with local law enforcement to establish lines of communications and agree upon ways to report and to respond to any acts of violence swiftly and effectively.
Provide Workplace Violence Prevention Training
Employers may wish to provide training to employees and supervisors that focuses on safety and security policies and protocols, the warning signs of potential violence, and the appropriate ways to respond if they experience or observe such signs. By conducting these trainings periodically, employers can reinforce the culture of a violence-free workplace, which may result in early detection and a reduction of the risk of violence.
Especially in these tumultuous times of political and social upheaval, employers should embrace the responsibility for providing safe workplaces. By promoting a violence-free workplace culture, employers can help reduce employees’ anxieties, increase engagement and minimize risks. While there is no one-size-fits-all strategy, the adoption and communication of clear policies and procedures prohibiting workplace threats, harassment, intimidation and violence can go a long way. Empowering and training employees and supervisors to report their concerns at the first signs of suspicious or threatening behavior can aid employers in preventing violence. This is a particularly critical time for employers to implement proactive strategies to protect their workplaces and their employees.