A. Employer Liability To Governmental Regulatory Bodies
The Occupational Safety and Health Act of 1970 (“OSHA”) mandates, in addition to compliance with all hazard-specific standards, that each employer has a general duty to assure their employees work in a workplace free from recognized hazards likely to cause death or serious physical harm. In OSHA’s “Guidelines for Workplace Violence Prevention Programs for Night Retail Establishments,” it has stated that it will “rely on Section 5(a) of the Act, the ‘general duty clause’ for enforcement authority.” The Guidelines do not in and of themselves impose any regulatory liability on employers and are expressly stated to be only “advisory in nature.” Nevertheless, prudence requires businesses to pay close attention to OSHA’s statement concerning how it will use the “general duty clause.”
If the employer has knowledge of or constructive knowledge (the circumstances were such that the employer reasonably should have known of the foreseeability of violence in the workplace) and takes no action to prevent it, then OSHA has put industry on notice that it will issue citations for failure to provide “a workplace free from recognized hazards likely to cause death or serious physical harm.”
Tennessee employers should also be aware of our state’s occupational safety and health laws (“TOSHA”). Under delegated authority from the Tennessee General Assembly, the Tennessee Department of Labor and Workforce Development, Division of Occupational Safety and Health, and pursuant to its rule number 0800-1-1-.01(2) has expressly adopted the “Occupational Safety and Health Standards which are the federal standards.”
B. Employer Liability Under The Tennessee
Workers’ Compensation Act
When the victim of violence in the workplace is an employee, it may generally be said that the employee’s remedies, if any, are to be exclusively found in the Tennessee Workers’ Compensation Law. Unlike a negligence lawsuit (sometimes referred to as a tort lawsuit), remedies under the workers’ compensation statutes are limited in dollar amount, may not be tried before a jury and do not allow for punitive damages.
Whether an employer would be liable to an employee under the Tennessee Workers’ Compensation Law for injuries sustained as a result of violence occurring in the workplace depends upon whether the injury may fairly be said to be an injury “arising out of” the employment. The “arising out of” element of a workers’ compensation claim involves proving there is some rational causal connection between the injury and some risk which is associated with work.
Tennessee case law has recognized that injuries occurring in the workplace due to “purely personal risks” may not be fairly said to “arise out of” the employment and are, hence, not compensable. In conformity with this principle, the Tennessee Supreme Court held that no workers’ compensation was due to the family of an individual who was murdered at her place of employment by her ex-husband who became enraged because he believed she had been involved in extra-marital, intimate relations.
The Supreme Court case above-discussed, however, is of a 1962 vintage. What employers should understand about the workers’ compensation law is the courts have said innumerable times that it is “to be liberally construed in favor of compensation.” With, no doubt, laudable changes in societal perceptions of domestic violence, it would not be unreasonable to conclude that a more modern case involving injury from domestic violence spilling over into the workplace could be found to be compensable.
This conclusion is supported by a review of analogous case law involving employees who are assaulted and injured by strangers in the workplace. There are Tennessee case law opinions in which the court has stretched to find a connection with the assault and work, even when the motive of the criminal was unknown. For instance, there is a more modern line of cases involving assaults of employees by strangers in which the “arising out of” element is “found” to be present simply based upon the conclusion that the employment made the victim accessible to the public generally and thereby ever so slightly increase the risk of assault. In this regard, employers should be cognizant of the fact that the defense of “purely personal risk” might well not be available if the victim of the domestic violence spilling over into the workplace was not the partner of the criminal actor but rather an innocent bystander co-employee.
As I prepared this article, I was struck by the number of times I found in research materials on the subject statements along the lines that it was a fact that “workplace violence is the most frequent cause of death for women on the job and the second for men [and] incidents of employees killing supervisors have doubled in the past ten years [and] on the average, American workers murder 3-4 supervisors a month.” “Workplace Violence: What A CEO Can Do To Reduce The Risk,” Chavez, Volume 11, No. 2, October 1998, Personnel Management Consulting Training and Support Newsletter, www.management-advantage.com/newsletr/oct98.htm.
C. Employer Liability To Non-Employee Bystander Victims
Remember that when the injured party is an employee, under current law the individual’s remedy would probably be limited to workers’ compensation. If the injured individual is not an employee, however, but instead is a customer or one of your business’ vendors, then they will have the ability to sue your company in a negligence lawsuit. Such actions do not have limitations on the amount of money which may be recovered. The plaintiff in such an action is also entitled to a jury trial and under certain circumstances may obtain punitive damages as well as compensatory damages.
Traditionally, owners of businesses were not held liable for injuries caused by the criminal acts of third parties. Traditional law held that such acts were “unforeseeable.” As we are well aware, attitudes concerning legal responsibilities change over time. In more recent years, courts, and in particular the Tennessee Supreme Court, have begun to develop a body of law which creates circumstances in which employers may have liability to victims of criminal acts of third parties.
In 1996, the Tennessee Supreme Court was faced with a particularly dreadful factual situation. In the case of McClung v. Delta Square Limited Partnership, the court had to decide a case brought by the surviving spouse of a woman who was abducted at gunpoint from a retail store parking lot and subsequently raped and murdered. The defense raised the traditional defense, that the act was unforeseeable and an act for which the business should have no legal liability.
The McClung court noted the law was that ordinarily there was no duty to protect individuals from the criminal acts of third parties. The court then, however, noted current trends in the law of other states and held that while there is no absolute duty to implement security measures for the protection of third persons on business premises, there is a duty “to take reasonable steps to protect customers . . . if the business knows, or has reason to know, either from what has been or should have been observed from past experience, that criminal acts against its customers on its premises are reasonably foreseeable, either generally or at some particular time.”
In the operation of a business, there are times when it becomes known that an employee or employee’s family member has committed or threatened to commit a violent act. When that knowledge is possessed by business, prudence requires that steps be taken to heighten security, contact local law enforcement offices to alert them of the potential for violence and/or to obtain the assistance of the court by obtaining a restraining order. Since under the McClung rule, the determination of whether a violent event is “foreseeable” can be based upon the knowledge possessed “at some particular time,” failure to take special precautions under these circumstances could expose the business to unlimited liability in a negligence action.