Is That a Threat?

Workplace violence has become too widespread for employers to address threats only after employees act on them. Mindful of violent tragedies such as the Columbine shootings and the Sept. 11, 2001, terrorist attacks, employers should not take threatening employee behavior or language lightly. HR professionals should act on threats of violence, as such threats may be an employer’s only warning that workplace violence is actually being contemplated.

Most HR professionals understand that the mere threat of violence should be met with swift discipline and possibly termination. But exactly what should go into a zero-tolerance workplace violence policy isn’t always clear.

While national standards are being developed to provide employers with more guidance, HR managers can look to approaches other employers have adopted, and can act with the knowledge that arbitrators and courts are siding with employers when zero-tolerance workplace violence policies are uniformly enforced.

No Joke

Employers often encounter threats of workplace violence—threats they should take seriously. Consider these real-world examples; they all landed first on the desk of a human resource professional and are summarized from arbitration decisions.

In one case, co-workers walked together to a meeting, and one employee vented to her colleague about the stress she felt, adding that she might "go postal." The colleague commented that the employee must not be serious, but the employee said she was and added, "I’m not suicidal, I’m homicidal."

In another case, an HR professional received medical records for an employee to process a workers’ compensation claim related to a leave of absence. Reviewing the records, the HR professional discovered that while on leave and during a stay at a hospital, the employee had described to his doctors plans to shoot and kill four co-workers and a union representative. The employee named all five people who were the targets of his rage and informed the doctors about several handguns, rifles and other weapons he kept at home.

In yet another case, a few days prior to a disciplinary meeting for an employee caught sleeping on the job, the employee told a co-worker that his supervisors "had better stop f---ing with" him and that he was likely to "go postal" on them. The next evening, the employee told another co-worker, apparently a friend, that if things didn’t go well in his disciplinary meeting, the friend might want to start wearing a bulletproof vest to work.

Trouble at home can lead to trouble at work, as another case suggests. Talking at work with a co-worker and his supervisor, an employee who was having marital and financial problems told them that he wished he had a gun with unlimited bullets so that he could "start dropping people one by one." Alarmed, the supervisor remarked that the employee should consider getting a computer game so that he could take out his frustrations on the game. Responding to his supervisor, the employee said, "No, I want to do it for real."

Developing Standards

To prepare HR practitioners and managers for circumstances like these, national standards on preventing workplace violence are being developed. Privately, the Workplace Violence Prevention and Response Guideline was released in 2005 by ASIS International, a 55-year-old standards-setting organization for about 37,000 security professionals around the globe. In March2009, the Society for Human Resource Management announced that it would collaborate with ASIS International to develop a joint Workplace Violence Prevention and Intervention American National Standard.

Already, some general guidance at the national level can be found in the primary workplace safety law, the U.S. Occupational Safety and Health Act (OSH Act). However, the OSH Act does not provide any specific standards for workplace violence and threats. These are understood to be addressed by the OSH Act’s general-duty clause. This clause requires employers to provide each employee a place of employment free from recognized hazards "that are causing or are likely to cause death or serious physical harm."

Periodically, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued industry-specific guidelines for preventing and responding to workplace violence, most notably for late-night retail establishments and health care and social service workers in vulnerable situations. In addition, a 2002 OSHA fact sheet titled "Workplace Violence" was directed at all employers subject to OSHA’s general-duty clause. Workplace violence prevention programs and zero-tolerance policies toward workplace violence were among the few specific recommendations.

In a 2006 letter to an individual who had asked OSHA to develop a national policy that would prohibit guns in the workplace, OSHA’s director of enforcement programs declined to adopt the suggestion and repeated the agency’s position that the general-duty clause requires employers to take appropriate steps to minimize recognized risks of workplace violence.

In March, the Obama administration announced an alliance with various Florida health care providers and professional associations to develop materials on effective ways to make workplaces safer.

Policy Considerations

While a national standard on workplace violence prevention is being developed, employers’ workplace violence policies will vary. Some policies are simple; others are more detailed.

Either way, labor arbitrators often have sided with employers who terminated employees for threatening to "go postal." In E.B. Eddy Paper, 121 LA 1821 (2006), an arbitrator upheld an employer’s simple and direct work rule: Employees could be terminated for the first violation of a rule that prohibited the possession, use or threatened use of weapons or firearms on company property.

A more detailed workplace violence policy was enforced in Lansing Community College, 122 LA 1392 (2006). College officials carefully defined workplace violence to include "specific threats to inflict physical harm or damage property," and strictly prohibited it. Employees were encouraged to report threats of violence to either the college police department or their supervisors or HR managers, depending on the apparent immediacy and severity of the threatened violence. HR’s role was defined to include advising campus departments and personnel on how to recognize, prevent, respond to and investigate threats of violence.

The ASIS Workplace Violence Prevention and Response Guideline suggests a more comprehensive policy like that used in the Lansing Community College case. The guideline states that workplace violence should be defined broadly in order to capture the entire range of workplace behaviors that could cause injury or "impede the normal course of work, or make workers, managers and customers fear for their safety."

The guideline then turns to policy development issues, such as identifying who will be responsible for enforcing a policy; providing those individuals with related policies, materials, procedures and training to ensure that they can be successful in enforcing a policy; and focusing on the need for a coordinated approach across various constituencies and harmony with other workplace policies.

According to the guideline, the best workplace violence policy is one that:

Specifically defines and prohibits all workplace violence and threats of violence. The prohibition should be specifically linked with a clear statement of the consequences for violating the policy. If the policy is to be zero-tolerance but with consideration for mitigating or aggravating circumstances, termination should be stated as the consequence for all established violations of the policy, subject only to the company’s discretion, but not obligation, to impose a lesser penalty if mitigating circumstances warrant it.

Encourages or requires employees to promptly report any suspected violations of the workplace violence policy, and provides multiple channels to make such reports.

States a commitment of nonretaliation for employees who make reports under the policy.

Identifies the individuals or departments responsible for acting on the policy, such as a formally designated "threat management" or "threat response" team. This should help encourage employees to make reports under the policy.

A number of other workplace policies should be viewed as complementary to a workplace violence policy. Policies addressing weapons in the workplace or on company premises, drug and alcohol use, harassment and discrimination, and use of company electronic communications and Internet resources may be relevant when employees make threats of violence, and should be considered when developing or updating a workplace violence policy.

An employee may communicate a specific threat to harm a co-worker via e-mail or a social networking site, for example. Or a threat may contain implicit or overt racial prejudices or may suggest sexually predatory and assaulting behaviors.

No policy can always prevent employees from threatening or perpetrating violence. The best that can—and should—be done is to maintain policies that promote a safe work environment. With proper training on the policy and commitment to its enforcement from the highest levels of the organization, this goal can be achieved.

The author is an attorney with Miller, Canfield, Paddock and Stone PLC in Lansing, Mich., and the immediate past president of the SHRM-affiliated Human Resource Management Association of Mid-Michigan.

Web Extras

• Online sidebar: Employee Right to Bear Arms Under State Law
• SHRM web page: SHRM Online Legal Issues home page
• SHRM toolkit: Workplace and Domestic Violence  
• SHRM article: Weapons Policies Under Fire (HR Magazine) 
• SHRM article: Trends in State Legislatures: Guns, Immigration, Time Off (SHRM Online State Workplace Law News)
• SHRM article: Court Upholds Oklahoma’s ‘Bring Your Gun to Work’ Law (SHRM Online State Workplace Law News)
• SHRM article: Guns at Work Permitted in Locked Vehicles in Arizona (SHRM Online State Workplace Law News) 
• SHRM article: Utah Enacts ‘Weapons in the Workplace’ Law (SHRM Online State Workplace Law News)
• SHRM article: Experts: Employers Must Learn About Domestic Violence Laws, Formulate Policies (SHRM Online Legal Issues)
• SHRM press release: ASIS International and SHRM Announce Joint Development of Workplace Violence AND Prevention and Intervention American National Standard 
• Publication: Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments (U.S. Occupational Safety and Health Administration)
• Fact sheet: Workplace Violence (U.S. Occupational Safety and Health Administration)
• Publication: Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers (U.S. Occupational Safety and Health Administration) 
• Web site: ASIS International