California Safeguards for Workplace Violence Investigations

According to the Occupational Safety and Health Administration (OSHA), nearly two million employees are victims of workplace violence each year. OSHA’s General Duty Clause requires employers to ensure that their workplace is “free from recognized hazards that are causing or are likely to cause death or serious harm.” This has been generally interpreted to mean that employers are responsible for keeping their employees free from all potential threats of harm which could include workplace violence.

While there are no specific requirements for employers to set up formal rules to avoid workplace violence, Cal/OSHA drafted a proposal on December 4, 2017, that would require employers to develop a Workplace Violence Prevention Plan and provide training. While that proposal wasn’t officially adopted, it is something that is still likely on the horizon. Employers need to make sure they prepare for this by implementing solid policies, procedures, and training on the topic of workplace violence.

Establish and maintain a good workplace violence policy

Most companies do not have an adequate policy that covers the topic of workplace violence. Even with all the news about workplace violence, the Bureau of Labor Statistics reports that over 70 percent of U.S. companies do not have official policies that address this serious issue. Guidance and training are essential to assure that employees will know how to identify risks and will be able to help deescalate potentially dangerous conflicts before they begin. Employers cannot afford to ignore or sweep employee complaint issues under the rug.  Having a clear policy, good practices and preventative training can help employers establish an environment of open and honest communication. Not having such measures in place can allow potential threats of workplace violence to hide in plain sight.

Practice positive reporting and investigative procedures

It is vital that employees are encouraged to report any signs of potential violence. Even when some employee complaints can appear to be too frequent, unreasonable or unreliable – don’t immediately dismiss them. Having an employee who is a frequent flyer on your company’s internal complaint reporting system can be frustrating, but you must investigate each claim before ruling it out. The moment that an employer begins turning away or dismissing claims, is the moment that your culture will shift, and you will start to take on the reputation of not listening to your employees.

We all know that we investigate threats based upon the real or perceived problems that your employee is reporting to you. While it is easy to handle the “real” part of the equation, employers often struggle with the “perceived” threats that the employees feel but cannot prove with tangible evidence. It can be more challenging to investigate why an employee feels threatened than to investigate cases with actual physical violence because there isn’t going to be as much evidence. In these cases, you’ll need to investigate more subtle signs of potential threats. This includes investigating the history that the employees have with each other. Ask questions about whether they were previously friends and if that relationship has recently soured. Listen to your employees and pay attention to all signs of menacing behavior.

Safeguards during a workplace violence investigation

California Civil Procedure Code section 527. 8, stated that an employer can file a petition for a temporary restraining order. It states the following:

“a)Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.

e)Upon filing a petition for an injunction under this section, the plaintiff may obtain a temporary restraining order in accordance with subdivision (a) of Section 527, if the plaintiff also files an affidavit that, to the satisfaction of the court, shows reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the defendant, and that great or irreparable harm would result to an employee. In the discretion of the court, and on a showing of good cause, a temporary restraining order or injunction issued under this section may include other named family or household members who reside with the employee, or other persons employed at his or her workplace or workplaces.

A temporary restraining order granted under this section shall remain in effect, at the court’s discretion, for a period not to exceed 15 days, unless otherwise modified or terminated by the court.”

Depending on who is being investigated and what resources a business has, it might be recommended that a company hire a third-party investigation service. This can be useful if the company’s internal human resources department has any reporting relationship to the accused party, or if the investigation could pose any potential conflict of interest to the business.

While the investigation is occurring and the accused party is placed on leave as well as a possible restraining order, this can allow the business to audit their current practices and implement some physical and systematic measures to ensure overall employee safety. Also consider working with a security agency that can help to identify any exposed or unsafe areas that could benefit from alternate security locks, cameras, sensor lights and communication systems.

Prevention is the best cure

While restraining orders, security services, and investigations can provide much-needed assistance in creating a safer working environment during an on-going investigation, the best way to protect your employees is to prevent these situations from happening before they start. All supervisor level employees should be well-trained and educated on how to identify the warning signs of a disgruntled and potentially threatening employee. A commitment to listening to employees and providing continuous feedback is an integral piece in maintaining a safe and positive work environment.