Can Employers be Liable for Workplace Violence?

In an earlier post, we mentioned that due to workplace violence, Walmart is now facing two lawsuits due to the November 2022 shooting in one of their Virginia stores. In that incident, a long-time store employee, Andre Bing, shot and killed six other Walmart staffers and then killed himself.

The lawsuits are asking for a total of $50 million in compensation, and in this instance, the two parties bringing the suits have a reasonably strong case against the mega-retailer

That’s because Walmart’s own investigators and employees had concerns going back several years that Bing could be dangerous and cause harm to fellow staffers. Further, at least one Walmart employee had filed a formal complaint about Bing months before the shooting, claiming he was a danger to others.

Several staffers also expressed concerns to store managers that he was challenging to work with, abusive, strange (he thought the government was spying on him through fellow-staffer cell phones), and because he had expressed threats and threats of violence toward them.

Legal experts might say that Walmart was on notice of the potential risk and did not act with due diligence to mitigate that risk and ensure that their employees were safe and secure in the face of this potential danger.

While this case may have “legs,” in most legal situations, it is not always clear-cut how much liability an employer has when a shooting such as this — or any form of workplace violence — occurs. Complicating matters, different states have different laws regarding workplace violence, including how liable an employer is if and when such incidents occur.

However, it is generally believed that under the following conditions, an employee may sue and hold liable an employer for a workplace violence situation:

Workplace Violence and employer negligence.

According to OSHA, employers are legally obligated to keep their employees safe from “hazards,” which in this case was the actual shooting. Suppose the employer knows that a staffer might be violent and potentially harm other workers but takes no steps to prevent it. In that case, it potentially represents the lack of corrective action for known “hazards .” This is the basis of the lawsuits against Walmart.

The employer’s intentional conduct played a role in an injury, assault, or violence. For example, an employer tells an employee that someone “snitched” on them for taking something from the office or falsifying work hours. In this case, the employer knew or should have known that the shooter was a hazard to the workplace and did not mitigate it.

Not covered or denied workers’ compensation.

In some cases of workplace violence, the employer may deny worker’s compensation coverage to the victim, or an employer may not carry worker’s compensation. In such cases, the employee may have no choice but to bring a lawsuit asking for coverage.

Of these conditions, the first one — employer negligence — requires special attention, both for employers and their employees.

Suppose it can be shown that an employer has a history of tolerating or ignoring nonviolent but aggressive behavior in the workplace, which subsequently leads to violence, or someone being injured. In that case, the employer may be held liable. We should note that this aggressive behavior may come in different forms, including bullying, yelling, emotional abuse, and sexual assault, all of which the employer is aware of but allows.

Preventing Workplace Violence

Employers have an arsenal of tools they can use to help prevent workplace violence. The best of these tools is a workplace violence prevention and management program, which serves as a guide to respond to and mitigate workplace violence risk and manage reported incidents. 

A workplace violence prevention and management program starts with the company making a corporate decision not to tolerate it and provides guidance to include:

• Checking in with an employee who shows distress, agitation, or anger.

• Setting up a procedure where employees can anonymously report to employers if they observe another staffer exhibiting threatening or potentially violent behavior.

• Bringing in third-party facilitators to resolve conflicts in the workplace.

• Training managers, supervisors, and other staffers on how to deal with situations in which violence is threatened or occurs. The program should be referred to and followed closely whenever reports of threats or other potentially violent behavior by employees, vendors, or visitors occur or are reported.

  • Establishing and activating internal Threat Assessment Teams to conduct a threat assessment and manage the incident

Employers should also consider having a facility security assessment performed. This helps identify and resolve security gaps that could facilitate an attack. And adding a risk assessment that looks into risks and hazards to a facility and its staffers, including workplace violence.

Further, the employer must create and establish a workplace violence program, train all employees on workplace violence awareness, teach managers how to deal with and mitigate workplace violence, and, most importantly, know the warning signs of workplace violence. 

In virtually all cases, warning signs are evident. The problem is that they often only become apparent after violence.

 The TAL Global Team

Trusted Expert Solutions

© TAL Global, 2019