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Recent shootings in Kalamazoo, Mich., San Bernardino, Calif., and outside Roanoke, Va., have made workplace violence a top concern these days. While employers wait for legislation to help make it easier to share more-honest references about past employees’ violent behavior, HR professionals should make sure their workplace violence prevention programs are sound and consult with their local police departments, legal experts say.
The Safe Harbor for Reporting Violent Behavior Act (H.R. 4532), a bill introduced in the House of Representatives Feb. 11, seeks to make workplaces safer by creating a safe harbor from liability for employers that report about any violent behavior by a former employee to a potential employer.
The bill was introduced in response to the killing of a WDBJ7 television station reporter and cameraman during a live interview. Reports indicated that the perpetrator, a disgruntled former employee, had a history of violent behavior with previous employers, but that history was not shared with his future employers, including WDBJ7, according to Rep. Bob Goodlatte, R-Va., the bill’s sponsor.
Goodlatte noted that it is difficult to get any information about a job applicant from past employers beyond the name and dates of employment because former employers fear being sued. “In fact, the Society for Human Resource Management(SHRM) has conducted surveys of employers and found that 75 percent of human resource managers reported they never disclosed information to potential employers regarding an employee’s violent behavior,” Goodlatte noted.
Employers typically choose to give a neutral reference or decline to give any reference at all since former employees can sue them for defamation, said Nickole Winnett, an attorney with Jackson Lewis in Washington, D.C. An employer also might be sued for retaliation for a bad reference, she noted.
While SHRM supports the bill, Terri Solomon, an attorney with Littler in New York City, said that its chances of passing are “miniscule.” That’s because, she said, “the law is going in the other direction.” For example, she pointed to the growing number of states and municipalities passing “ban-the-box” laws, prohibiting the use of check boxes on job applications inquiring about prior criminal convictions.
Moreover, some states already have laws protecting employers from lawsuits if they give fuller references, and it’s not clear that these provisions actually result in more referrals, even if such laws are “great in principle,” Winnett said.
In addition, to take advantage of the bill’s safe harbor, “an employer must act in good faith and based on objectively reasonable suspicion,” noted Debra Friedman, an attorney with Cozen O’Connor in Philadelphia and New York City. “Accordingly, the bill does not shield employers from becoming embroiled in expensive, time-consuming litigation defending their actions as objectively reasonable and in good faith, although employers ultimately found to be immune from liability are entitled to recover from the employee all reasonable costs and attorneys’ fees.”
However, Solomon said that even without this legislation, some former employers will give out specifics, as a defense to defamation is the truth.
Regardless of whether the proposed legislation is enacted, there are many steps that employers can take now to increase safety in the workplace and to help prevent workplace violence.
Kristin Michaels, an attorney with McDermott Will & Emery in Chicago, said that an effective workplace violence prevention policy should include:
Provide employees with multiple channels for making complaints about suspected workplace violence, including confidential reporting, she added.
“Often, people do not take action because they do not know what to do, or they are worried about making a mistake—but inaction or keeping silent is the worst possible choice in these circumstances,” said Meagan Newman, an attorney with Seyfarth Shaw in Chicago.
“And always, if there is an imminent threat, call 911,” Solomon said.
Cultivate Ties with the Police
The local police can be a big help in training on how to avoid workplace violence, Solomon noted.
“Many police departments are happy to partner with businesses to keep people safe,” she said.
The police may walk through the facility with the employer and make security recommendations, such as fixing broken locks or bad lighting. And they may do active shooter drills—all free of charge.
“You just have to ask,” she said.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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