ao bmployers eave A auty To Maintain A pafe torkplace? ves. aoes This lbligation Apply To bmployee siolence lr kon-bmployee siolence lr Threats Epuch As aomestic siolence)? ves. gerry Cunningham Eupdated guneI OMNMF
aomestic siolence And bmployer oesponsibilities: Background Materials
lffJmremises fssuesW NK A cocus ln siolence fnside lf and lutside lf qhe torkplace OK bmerging bmployer lbligations
• fK fntroductionK • ffK aomestic siolenceW _ackground ln torkplace siolenceK • fffK siolence And qhe torkplaceW qhe kew iegal ConnectionK bmerging siewW Corporate oesponsibilityK aepartment of iabor bnforcement qrendsK • fsK rnder that Circumstances Could An bmployer eave A auty qo mrevent aomestic siolence crom lccurring ln fts mremises? • sK bmployerJlbtained oestraining lrdersK • sfK lregon iaw
fK fntroductionK AK lffJmremises Conduct lf bmployees And konJbmployeesK J qraditional Analysis
Jmrivacy fssuesK _K eistorical iack lf bmployer oesponsibility cor PrdJmarty Criminal ActK
ffK torkplace siolenceW phort eistory AK eomicideI the most extreme form of workplace violenceI is the second leading cause of death in rp workplacesK _K qhere were SIRUU deaths in NVV4; homicides accounted for NIMTN of those deathsI or NS percentK
fn NVVOI the _ureau of iabor ptatistics reported 4P percent of all women who died on the job were victims of violenceI compared to NU percent for menK A study done in qexas found that RPB of women who suffered workJrelated fatal injuries were murderedI as compared with NPB of the men; other studies confirm that at least 4MB of all female work place fatalities are murdersK fn NVVOI the rp purgeon deneral ranked abuse by husbands and partners as the leading cause of injury or death to womenK crom NVVOJV4I NT percent of the attackers of women in the workplace were current or former husbands or boyfriendsK qhis number is growingW ft was closer to R percent from NVUTJNVVOK qhough women are less likely to be murdered at work than menI women are about five to six times more likely than men to be the victim of a crime committed by an intimateK
jost such criminal acts do not result in deathK According to ali statisticsI ONIPMM workers were injured in nonfatal assaults in the workplace in NVVP and women were victims in RS percent of these assaultsK qhe aepartment of gustice stated that between NVUT and NVVO about N million individuals each year were assaulted at workK An annual breakdown isW SNRINSM simple assaultsI OS4INT4 aggravated assaultsI TVINMV robberiesI and NPIMSU rapesK
_K ?A survey of cortune NMMM companiesI conducted for iiz ClaiborneI fncK in NVV4I found thatW JJ 4 out of NM corporate leaders surveyed were personally aware of employees in their companies who have been affected by domestic violence; nearly half E4V percentF said that domestic violence had a harmful effect on their companyDs productivity; JJfortyJseven percent said it had a harmful effect on attendance; fortyJfour percent said it had a harmful effect on health care costs; oneJthird believed domestic violence affected their balance sheet; and twoJthirds agreed that a companyDs financial performance would benefit from addressing the issue of domestic violence among its employeesK
JJ lnly NO percent said that corporations should play a major role in addressing the issueK vetI over half ERU percentF of the NMM senior executives who were interviewed sponsored domestic violence awareness or survivor support programsI and nearly three quarters offered domestic violence counseling or assistance programsK cortyJthree percent said they would definitely respond to the problem in the future?K pourceW tomenDs _ureauK
lverall kumbersW lregon
fn a fiveJyear periodI approximately NNIMMM women who were physically assaulted and TIRMM women who were sexually assaulted by intimate partners sustained serious injuriesI including broken bonesI internal injuriesI head injuriesI and lacerations or knife woundsK • cewer than O in R seriously injured women received medical careK • Among women who did seek medical careI about three quarters of physical assault victims and about half of sexual assault Estudy hereW httpWLLtinyurlKcomLstudyTSTS n ealf ERNBF of physical assault victims and oneJthird EPPBF of sexual assault victims who answered detailed victimization questions reported that children were in the household at the time ofthe most recent violent incident by an intimate partnerK n fn PPB of intimate partner physical assaults and OMB of sexual assaultsI a child or children witnessed the eventK n qhis translates into OSIVNM children who directly witnessed a physical assault and NINTU that witnessed a sexual assault against a mother or adult female caregiver within the past five yearsK n OMMPW major study by CaCW “Costs of fntimate martner siolence Against tomen in the rnited ptates”W httpWLLtinyurlKcomLcdcTRTR
n OMMVI extensive national studyW §
“qhe research shows that acts of domestic violence often occur while a victim is at work because work is the one place where perpetrators know they will be able to find their victimsK merpetrators of violence visitI stalkI or harass their targets at workK qhey may callI emailI faxI or otherwise disrupt a workdayK qhey may also interfere with victims’ employment by preventing someone from showing up to work or getting enough sleep before work
Among other tacticsI they also may embarrass or otherwise cause psychological distress that impacts job performanceK” aomestic siolence and torkW iegal and _usiness merspectivesI (2009), jarcy iK harin and maula phapiro – online hereW httpWLLtinyurlKcomLstudyTPTP §
ptate of tashingtonW fs a tashington employer prohibited from terminating an atJwill employee because he or she took leave from work to protect himJ or herself from domestic violence? vesI according to last weekDs opinion from the tashington pupreme Court in aanny vK iaidlaw Transit pervicesI IncK
§
jany employers now have written policies to guide managers in handling cases where an employee is a victim of domestic violenceK pamples hereW httpWLLendabuseKorgLsectionLprogramsLworkplaceL_dv_workplace_policies
§
qhe Centers cor aisease Control And mrevention has excellent materials for OMNMW httpWLLtinyurlKcomLcdcSRSR
§
qhe c_f also has materials for OMNM; the c_f issued its first report in NVVSK Current materials hereW httpWLLtinyurlKcomLfbiVTVT
qhreats qo bmployeesW bmployer lbligations
fffK siolence And qhe torkplaceW qhe kew iegal ConnectionK
AK qraditional siew fn kegligence iawW
n koneW qhirdJparty criminal conduct Eiack of foreseeabilityF
_K bmerging siewW Corporate oesponsibilityK NK qhe aepartment of iabor And deneral auty ClauseK
qhe deneral auty Clause Epection REaFF of the lccupational pafety and eealth Act of NVTM requires employers to provide a safe and healthful working environmentK bmployers can be cited by lpeA under the deneral auty Clause if there are recognized hazards of workplace violence and nothing is done to prevent or abate themK
OK eistoryW NVVOK qhe ali stated to an employer in NVVOW ?Although currently there are no specific cederal lpeA standards to address these problemsI the cederal lccupational pafety and eealth Act Elpe ActFI in pection
KK
REaFENFI provides that ?each employer shar furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employeesK? fn a workplace where the risk of violence and serious personal injury are significant enough to be ?recognized hazardsI? the general duty clause would require the employer to take feasible steps to minimize those s risksK cailure of an employer to implement feasible means of abatement of these hazards could result in the finding of an lpe Act violationK
ln the other handI the occurrence of acts of violence which are not ?recognized? as characteristic of employment and represent random antisocial acts which may occur anywhere would not subject the employer to a citation for a violation of the lpe ActK
thether or not an employer can be cited for a violation of pection REaFENF is entirely dependent upon the specific factsI which will be unique in each situationK qhe recognizability and foreseeability of the hazardI and the feasibility of the means of abatement are some of the critical factors to be consideredK?
PK eistoryW NVV4K ln kovember TI NVV4I a meeting took place between lpeA officials and the workplace violence labor coalitionK qhe organizations personally represented included AcpCjbI pbfrI iaborersDI NNVVI and other union officialsK Also present were representatives from the tomenDs _ureau of the aepartment of iabor and lpeAK qhe purpose of the meeting as stated by the labor coalition was to ?put lpeA on the record recognizing workplace violence?K
Consensus was reached on the following pointsW
KK
GlpeA will make it a priority that employers follow the appropriate recordkeeping and reporting requirements for workplace violence incidentsK GlpeA will issue general guidelines which will be developed with the participation of business and labor communitiesK GlpeA will issue guidance to its compliance officers on investigations and inspections regarding workplace violenceK GlpeA and its state counterparts will provide consultative services to employers requesting assistanceK
GlpeA wir provide training to its compliance officersK GlpeA officials agreed to concentrate on comprehensive prevention programs rather than specific abatementsK GlpeA officials agreed to educate the public as to the different types of workplace violence in proportion to their frequency and severityK
GlpeA officials agreed to continue working with other federal agencies to identify the workplace violence hazards and their reduction or prevention as information becomes availableK
4K eistoryW NVVSK fn NVVSI the ali took the further step of issuing guidelines on workplace violence and employersD obligations in specific industriesK ?duidelines for mreventing torkplace siolence for eealth Care and pocial pervice torkers? and draft guidelines for night retail establishments were issuedK
KK
qhe ali isI thereforeI focusing on highJcrime businessesK ali has taken the position thatI if an employer is in a highJ crime businessI that employer must take affirmative steps to reduce the possibility of injury to its employeesK
cor exampleI a night retail establishment is more likely to be the target of an armed robbery than a manufacturing facilityK AccordinglyI the night retail establishment has special dutiesK According to aliI these include many areasK fn the area of recordkeeping aloneI ali stated that employers in night retail establishments must keepW JlpeA iog of fnjury and fllness ElpeA OMMFK lpeA regulations require entry on the fnjury and fllness iog of any injury that requires more than first aidI is a lostJtime injuryI requires modified dutyI or causes loss of consciousnessK Eqhis applies only to establishments required to keep lpeA logsFK fnjuries caused by assaultsI which are otherwise recordableI also must be entered on the logK A fatality or catastrophe that results in the hospitalization of P or more employees must be reported to lpeA within U hoursK qhis includes those resulting from workplace violence and applies to all establishmentsK
Jjedical reports of work injury and supervisorsD reports for each recorded assault should be keptK qhese records should describe the type of assaultI iKeKI unprovoked sudden attack; who was assaulted; and all other circumstances of the incidentK qhe records should include a description of the environment or locationI potential or actual costI lost timeI and the nature of injuries sustainedK
KK
Jfncidents of abuseI verbal attacks or aggressive behavior Jwhich may be threatening to the worker but do not result in injuryI such as pushing or shouting and acts of aggression towards customers J should be recordedI perhaps as part of an assaultive incident reportK qhese reports should be evaluated routinely by the affected departmentK Jjinutes of safety meetingsI records of hazard analysesI and corrective actions recommended and taken should be documented
Joecords of all training programsI attendeesI and qualifications of trainers should be maintainedK
As part of their overall programI employers should evaluate their safety and security measuresK qop management should review the program regularlyI and with each incidentI to evaluate program successK oesponsible parties EmanagersI supervisorsI and employeesF should collectively reevaluate policies and procedures on a regular basisK aeficiencies should be identified and corrective action takenK? AccordinglyI while the majority of employers are not subject to the guidelinesI it is clear that the trend is to increase the legal obligations of employers to prevent workplace violenceK qhe aliI for nowI is focused on those industries where violent crime is a known quantityW for exampleI almost twoJthirds of the nonfatal assaults in one recent year occurred in nursing homesI hospitalsI and establishments providing residential care and other social servicesK
fsK rnder that Circumstances Could An bmployer eave A auty qo mrevent aomestic siolence crom lccurring ln fts mremises?
AK qhe deneral auty ClauseK • ?each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employeesK?
_K California iabor Code pection S4MOW •?ko employer shall requireI or permit
any employee to go or be in any employment or place of employment which is not safe and healthfulK”
CK California iabor Code pection S4MNKTW JJ fnjury mrevention mrogramK
aK fmplied lr bxpress Contractual Commitments lf pafety bK qhe ptandards bvolving fn qhe iaw lf mremises iiabilityK
jost employers are also landlords or landowners; if notI they are significant tenantsK fn any of those capacitiesI the employer controls the premisesK An employer has various duties to ensure the reasonable safety of individuals who come to its premisesK thile duties to keep a safe workplace are often defined by statutesI such as the California iabor CodeI duties to visitors to the employerDs premises are not often defined by statuteK
qhe duties of an employer to visitors on its premises are defined by negligence lawI and other areas of tort lawK qhusI in the event a visitor is injured on an employer’s premisesI the important question will beW did the employer take reasonable steps to ensure the safety of the visitor? fn the pastI if a crime occurred on an employerDs premisesI the typical defense was simply that no employer could reasonable foresee an act of violenceI particularly by a nonJemployeeI and thus the employer would not be liable for those nonJforeseeable actsK
qhe courtsI howeverI are not convinced anymore that crime is not foreseeableK qhusI the courts can be convinced that in a particular caseI the employer should have foreseen an act of violence and thus should have taken better precautions to prevent an injury to a visitor Eand its employees alsoF from occurring on its premisesK
fn a ganuaryI NVVTI the California pupreme Court wrestled with a question in this area of law and set precedent for the recent casesK A customer was in a hcC in which there was no history of armed robberyK At gunJpointI a hcC clerk was told to turn over the storeDs moneyK qhe clerk stalled; the gunman held the gun to the customeris backI and the hcC clerk relented and turned over the moneyK qhe gunman fled and the customer suedK qhe Court held that hcC did not have a duty to just turn over the moneyK
fn reaching that conclusionI howeverI the pupreme Court discussed the circumstances in which a business in charge of a premises can be held liable for injuries to visitorsK qhe pupreme Court saidW
J?a business proprietor is not an insurer of an invitee’s safetyK qhere is a requirementI howeverI that reasonable care be taken for their safetyI and liability exists for injuries resulting from a breach of that duty of reasonable careK?
J?pince the possessor is not an insurer of the visitorDs safetyI he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurringI or are about to occurK ee mayI howeverI know or have reason to knowI from past experienceI that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitorI even though he has no reason to expect it on the part of any particular individualK ff the place or character of his businessI or his past experienceI is such that he should reasonably anticipate careless or criminal conduct on the part of third personsI either generally or at some particular timeI he may be under a duty to take precautions against itI and to provide a reasonably sufficient number of servants to afford a reasonable protectionK? EoestKOd qortsI §P44I comK fI ppK OORJOOSKF
there a warning of danger is not adequate to protect a patron from intentional harmful acts of a third partyI a landowner must ?exercise reasonable care to use such means of protection as are availableK? EoestKOd qortsI ยง P44I comK dI pK OORKF then criminal conduct is ongoingI that duty requires that the landJowner or occupier take such appropriate action as is reasonable under the circumstances to protect patronsI xcitation omittedFK
Jqhe oestatement rule continues to be the generally accepted test of liability of a business owner for injuries on the business premises caused by third party criminal conductK A land occupier ?must act as a reasonable person to avoid harm from the negligence of contractors and concessionaires as to activities on the landI as well as that of other persons who have entered itI and even from intentional attacks on the part of such third personsK ee is required to take action when he has reason to believeI from what he has observed or from past experienceI that the conduct of the other will be dangerous to the inviteeI but not if there is no reason to anticipate a problemK? Emrosser C heetonI qorts ERth edK NVU4F fnviteesI ยง SNI pK 4OUI fnsK omittedKF Eemphasis addedFK? KcC vK puperior CourtI California pupreme CourtI N4 CalK4th UN4 ENVVTFK
sK bmployerJlbtained oestraining lrdersK ?Any employerI whose employee has suffered unlawful violence or a credible threat of violence from any individualI which can reasonably be construed to be carried out or to have been carried out at the workplaceI may seek a temporary restraining order and an injunction on behalf of the employee prohibiting further unlawful violence or threats of violence by that individualK? California Code of Civil mrocedure pection ROTKUK qhis law does not expand the duty to provide a safe workplace Epection ROTEkFFK fncludes telephone callsI stalkingI eJmailK aoes not include divorce cases or domestic violence Epection ROVEbFFK JJtashington mostW major articleI OMMTK httpWLLtinyurlKcomLwpVTVT
JJlregonian articleI NNLMVW bmployers reluctant to deal with domestic violence problems of employeesK httpWLLtinyurlKcomLoregonUUPP
JJCorporate Alliance to bnd martner siolenceW httpWLLcaepvKorgL
sK ptalking lrders And lther oestraining lrders ElregonFW lregon formsW
httpWLLtinyurlKcomLformsTSTS
jarion CountyW lots of information and forms httpWLLwwwKcoKmarionKorKusLaALvictimassistanceLptalkingL
sfK lregon lawW
NK lop SRVAKOTO ieave of absence for domestic violenceI court appearancesK OK lop SRVAKOVMW “oeasonable safety accommodation” for the
employeeLvictimK
qhe crime victims’ law requires employers to grant an eligible employee a “reasonable” leave of absence if the employee or the employee’s minor child or dependent needs time off to deal with issues of domestic violenceI sexual assaultI or stalkingK qhese arrangements might include such things as seeking medical treatmentI obtaining counselingI relocatingI getting legal advice or contacting law enforcement personnel n Applies rrsidOMRMRO to employers with one or more employees Eas of ganuary NI OMNMK
n
PK cor employees of the ptate of lregonI each agency has a “siolence cree torkplace” policyK lop O4MKPMS; O4MKPON; O4MKRRR; O4MKRS 4K Can an lregon school district ban handguns for the employees of
the school district? vesK aoe vK jedford pchool aistK R4VCI OPO lrKAppK PUI OON mKPd TUT EOMMVF
RK Can an employee quit a job because of domestic violence and still get unemployment insurance? vesK lop SRTKNT
SK bffective NKNKNMW ElregonFW qhis law increases workplace protections
by prohibiting employment discrimination against survivors of sexual assaultI domestic violence and stalkingK
TK lregonianI OLOMNMW “lregonDs crisis service hotlines receive more
than RMIMMM emergency and PTIMMM nonJemergency calls from survivors of domestic violence every yearK oaphael eouse of mortland and other community support services are stretched beyond capacityI leaving OMIMMM requests for shelter services unmetK” httpWLLtinyurlKcomLoregonVVVTTT
UK Can a woman be evicted because she is a victim of domestic violenceI
sexual assault or stalking in lregon? koK lop VMK44V
VK A victim of domestic violence in lregon now has protection against
retaliation from her employer when she files a restraining order or reports her abuser’s conduct to the policeK lop SRMAKOPM
NMK dreat set of links for lregonK