Employee Shooting Results in Unusual Liability for Workplace Violence

A preventative workplace violence strategy can be an important best practice.  As we’ve previously discussed in a post about what employers can learn when violence hits close to home, employers also should have a real strategy for the “during” and “after” of a workplace violence incident.  One common prevention tool popular among employers today is the Employee-Assistance Provider (EAP).  Considered by many to be an effective way to intervene before little troubles become big problems, EAPs have enjoyed increased popularity over the past several years.

alcohol and violence

The recent settlement by an EAP in a case involving a fatal workplace shooting may shine new light on just how much influence this type of service may have over your employees and how much risk you incur if you don’t set clear policies with your EAP. It should put employers on high alert about your EAPs policies on how they address and communicate referrals where violence is an issue.

The shooting in 2003 killed six employees in a Lockheed Martin plant in Meridian, Mississippi.  The suit was filed by Erica Willis, the daughter of one of the six victims.  The shooter worked at the Lockheed facility for 20 years before the shooting, in which he also took his own life. Willis filed suit not against Lockheed, the shooter’s employer, but against Lockheed’s EAP, NEAS, Inc.

The suit alleged that some of the employees who worked alongside the shooter had been complaining for months that their coworker had threatened them and used racial slurs in the presence of Black employees.  And, a year before the shootings, Lockheed told him that his continued employment would be contingent on completing a counseling program through NEAS. 

NEAS referred him to an affiliate, which cleared him to return to work after just three counseling sessions.  Later that year, he was attending a mandatory diversity training program when he walked out of the class without explanation.  He returned with a shotgun and a rifle. 

The suit claims that NEAS, Inc. (the settling party), failed to provide its affiliate with a full background for the referral.  Instead, NEAS is alleged to have stated only that the employee had “boundary/communication issues.”

This case raises several interesting issues relating to violence at work. 

For one, the recent legislation signed into law in Florida, takes on new meaning in this context.  The State of Florida has a new law that prohibits employers from banning guns from their property.  Cautious employers have clear policies on the presence of weapons on company property, including employees’ cars in the company’s parking lot.  The Florida law that makes such a policy unlawful seems to be an invitation for disaster. 

It is also an unusual example in that the employer did not get sued–the EAP and its affiliates were the named defendants.  (The affiliate was dismissed early in the case).  Usually we counsel clients about workplace violence prevention in the context of suits for negligent hiring, retention, and training, property liability, and even the General Duty Clause of OSHA.  But this story evidences a whole new basis for liability if the employer fails to communicate how its EAP addresses employees with a proclivity for violence.  It’s not so far-fetched to imagine the EAP disclaiming all responsibility on the ground that it was simply following orders and pointing the proverbial finger at the employer who hired it.

And yes, it can happen to you.

Perhaps the single biggest error employers make when it comes to workplace violence is the mistaken belief that it “can’t happen to them.”  Workplace violence is, and has been, in every type of workplace in cities and states across the country.  Fatal and non-fatal incidents occur everywhere and can occur at any time.  On average, 1.7 million workers are injured each year, and more than 800 die as a result of workplace violence.  There are no second chances when it comes to employee safety, so take the initiative to implement preventative practices before it’s too late.

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