Calvin Associates, Inc.

post »The Difficult Dilemma Facing Employers When It Comes to Threats of Workplace Violence 4-7-16

April 14 2016, 4:45 pm

Bruce’s Summary: Workplace Violence, could it have been prevented and how? Haunting questions in a society of individual rights now somewhat outweigh the rights of the group. The NLRB protects certain provocative work-related speech, the Americans with Disability Act (ADA) may protect an employee who engages in conduct resulting from a psychiatric disability because the conduct may be part of the employee’s disability.

The ninth circuit recently, according to the author, recognized an exception, although very narrow, where the plaintiff made threatening comments, including, “coming down with a shotgun an{d} blowing off” the head of the supervisor and another manager.” The plaintiff went out on medical leave and upon return for duty release was fired by the employer. The court held “{a}n employee whose stress leads to serious and credible threats to kill his co-workers is not qualified to work for the employer, regardless of why he makes those threats.” The court acknowledged that its holding was premised upon the “extreme” and (as always) particular facts of the case.

The author recommends employers do everything they can before and after threats of violence, from a clear workplace violence policy, response plans, following consistent firm discipline for all violations of the policy. In addition, pre-employment screening and implementing training. The more employees and managers are trained the better equipped they are for early recognition, intervention and responding appropriately while working within the shifting legal parameters defined for them. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.”