Rebecca Strauss - Miller Johnson - Attorneys

© 2017 Miller Johnson. All rights reserved. 1

Rebecca Strauss

The materials and information have beenprepared for informational purposes only.This is not legal advice, nor intended to create orconstitute a lawyer-client relationship.Before acting on the basis of any information ormaterial, readers who have specific questions orproblems should consult their lawyer.

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What is it?Non-physical aggression: Aggression, intimidation,

harassment, or other threatening behavior

Violent conduct: Violent conduct (murder, assault,robbery, sexual assault) occurring at work or onduty

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Who commits it? Employees (victims are co-workers, or customers)

Customers (and patients)

Strangers

Relatives (or boyfriends/girlfriends) of employees

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Orlando, Florida – June 6, 2017

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Hesston, Kansas – February 25, 2016

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San Bernardino, CA – December 2, 2015

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Kalamazoo, MI – February 20, 2016

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People are generally safer at work than awayfrom work

Despite increased media visibility, workplaceviolence occurs less frequently today than adecade ago 1994: 1080 workplace homicides

2011: 468 workplace homicides

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Domestic violence as workplace violence 20% of workplace violence directed towards

women is perpetrated by an employee’s spouse,partner, or someone the employee knows who isnot a co-worker

For men, the rate is 13%

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MIOSHA standards

Workplace violence policies

Weapons policies

Background checks

Negligent hiring

Early indicators – what can you do withoutviolating the ADA

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MIOSHA addresses Workplace Violence underthe “General Duty” Clause which requiresemployers to provide their workers with aworkplace “free from recognized hazards thatare causing or likely to cause death or seriousphysical harm”

“Workplace violence is recognized as anoccupational hazard in some industries andenvironments which, like other safety issues,can be avoided or minimized if employerstake appropriate precautions.”

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“OSHA believes that a well written andimplemented Workplace Violence PreventionProgram, combined with engineeringcontrols, administrative controls, and trainingcan reduce the incidence of workplaceviolence in both the private sector andFederal workplaces.” OSHA (adopted byMIOSHA)

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Essential elementsDefine what type of conduct is prohibited

Describe consequences

Encourage employees to report concerns

Instruct employees who they should contact


What is prohibited? Physical contact

Other conduct

Threatening

Intimidating

Harassing

Prohibit conduct even if employee claims conduct isa “joke” or just “horseplay”

Policy applies to employees, as well as any personwho is on the premises

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What gets reported? Overt or subtle threats

Physical or verbal intimidation

Stalking/surveillance of others

Expressions of violent plans or intent

Violent conduct

Threats of violence by acquaintances (includingdomestic violence) that employee believes could occurat work

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To whom is it reported? If there is a threat of imminent harm, call 911 or

employer security officer If the violence or threat does not create an

immediate threat of harm, Report to supervisor and human resources Human resources can escalate up the chain of

command if necessary

Human resources keeps log of incidents so that itcan determine if it should take action to preventreoccurrences Explain consequences of violating the policy

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Past and Present Future?


“You’ve got to ask yourself one question…”

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If your organization decides to PROHIBITweapons in the workplace: You are probably among the vast majority of

employers

Zero-tolerance approach to employee-carrying ismost common

Does policy apply to customers/visitors?

Beware: Parking lot laws

MI – no “parking lot” employer restriction

IN, IL – most employers may not lawfully prohibitemployees from keeping a weapon in a locked cartrunk or glove box, even in a parking lot

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If your organization decides to ALLOWweapons in the workplace: You need to start with a clear written policy

Recommendation: Only licensed employees may carry

Recommendation: Employees may carry onlyregistered firearms

Consult an attorney!

Review other employee policies carefully to preventconflicts

Threat escalation?

Weapons possession?

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Certain employers may not lawfully allowconcealed carry on premises, including:Child care/day care centers

Arenas

Bars

May need to alert workers’ compensationcarrier

Third-party liability – consider carefully


You work as the HR manager for a residentialbuilder

Your company has an opening for a generallaborer. You conduct a background checkand notice that he had served time in prisonfor a violent felony. Believing in givingpeople second chances, you hire him.

A subcontractor arrives at a subdivision’smodel home to meet with one of yourexecutives, who takes her meetings there

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Without warning or provocation, a generallaborer, employed by your company, viciouslyattacks the subcontractor. The employee waslater committed to a mental institution.

The subcontractor sues your company fornegligent hiring or retaining based on youractual knowledge of employee’s violenttendencies, or failure to be reasonablydiligent in ascertaining the employee’s violenttendencies.

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Was the background check legal?

Should you have decided not to hire thegeneral laborer when you saw the felonyconviction?

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Federal law (Title VII)

Does not directly address employer use ofcriminal records

Does protect employees in protected categoriesfrom “disparate impact” discrimination

The EEOC has taken the position that Title VII’sdisparate impact protections can, in some cases,make consideration of an applicant’s criminalbackground unlawful

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EEOC’s solution: A targeted or individual-ized exclusion that considers three factors:

1. The nature and gravity of the offense

What harm was caused?

What were the elements of the crime?

2. The time that has passed

3. The nature of the job

Not just the title, but the duties

Also consider the environment in which the job isperformed


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Michigan law (Elliott-Larsen)

Directly addresses employer use ofcriminal records

Employers are prohibited from taking adverseaction against any employee or applicant foremployment due to the individual’s misdemeanorarrest record

Can discriminate on the basis of convictions andpending felony charges

The General Rule

An employer must use “reasonable care”to avoid selecting or retaining anemployee who it knows or should haveknown, based on past acts, had a violentor vicious nature which was likely toresult in injury to someone

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Nature of the employee’s position: Will the employee have one-on-one contact with

customers or other members of the public? Does the employer’s business involve caring for others

or others’ property?

Conduct which might indicate a propensity towardviolence Does the employee have a criminal background? What

is the charge? Has the employee displayed violent conduct at work? Has the employee made specific threats? Has the employee made rude or vulgar comments?

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Jury decided that the employer should haveknown of the general laborer’s violencepropensity.

Michigan Supreme Court said “the mere factthat a person has a criminal record, even aconviction for a crime of violence, does not initself establish the fact that the person has aviolent or vicious nature so that an employerwould be negligent in hiring him to meet thepublic.”

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An employee reports to you that a co-workerin the cubicle next door has been actingstrange, depressed, and erratic.

He is prone to seemingly unprovoked angryoutbursts that include profanity directedtowards co-workers.

His behavior makes the co-workeruncomfortable and she thinks “he might

have a mental health problem.”

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Remember - the ADA (and Michigan’sPWDCRA) prohibits discrimination against,and requires employers to providereasonable accommodations to qualifiedindividuals with disabilities Situations like this one typically become

mishandled in one of three ways…

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Employee sends a text message to hissupervisor telling the supervisor that she“better watch her back” and that he “won’tput up with her bullsh**.”

When you speak with the employee, heapologizes and explains that he has beendiagnosed with an anger disorder that causeshim to quickly lose his temper and say thingsthat he does not mean.

Can you still discipline the employee?

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Error #1: Failing to discharge an employeefor violating a workplace conduct rulebecause he or she has revealed a mentaldisability or impairment

Remember the key – you can always discipline ordischarge for misconduct, even if that misconducthas been caused by a disability

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Regarding the employee who sent the textmessage ...Are there grounds for an IME?

Can he effectively perform his job functions?

Sales representative

Receptionist

Physician assistant

Accountant

Should you continue to allow him to

work with the supervisor?

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Error #2: Jumping the gun towards an IME

Under the ADA, a current employee may beordered to undergo an independent medicalexamination for reasons that are both job relatedand consistent with business necessity

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One of your employees takes days off to recoverfrom a suicide attempt, which occurred at work.The employee reported that she was distraughtabout working with her ex-boyfriend.

After only a few days, employee is released to returnto work. Her ex-boyfriend still works there.

The manager is concerned about allowing her toreturn to work. Is there anything you can do?

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Error #3: Misapplying the “direct threat”analysisUnder the ADA, an employer may lawfully exclude

an individual from employment for safety reasonsonly if the employer can show that employment ofthe individual would pose a “direct threat” tohim/herself or others that cannot be eliminated orreduced by a reasonable accommodation “Direct threat” is a significant risk or substantial

harmMust make individualized assessment of the

individual’s present ability to safely perform thejob, considering most current medical knowledgeand/or best available objective evidence

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Analysis for medical examination under theADA Job-related and consistent with business necessity

Is there legitimate concern that the employeeis unable to perform essential job functions?

Is there legitimate concern that the employeemight be a direct threat to herself or others?How do you obtain that information?

If employee is taken off work, is it FMLAleave?

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An employee submits a FMLA certificationform stating a need for intermittent leave dueto bi-polar disorder and schizophrenia.

In the section of the FMLA certification formaddressing essential job functions, theemployee’s provider states: “When employee is having a flare-up, employee’s

judgment and reasoning is compromised. It couldbe unsafe for employee to be around others,especially employee’s supervisor.”

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Is there sufficient information to take theemployee off work?

Is there sufficient information for a fitnessfor duty exam?

What about the FMLA leave?

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Rebecca L. [email protected]

100 W Michigan AveSuite 200Kalamazoo, MI 49007

45 Ottawa Ave SWSuite 1100Grand Rapids, MI 49503

millerjohnson.com

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Rebecca Strauss - Miller Johnson - Attorneys