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Ms. Pohlid

Hospitality Law

Workplace Violence: How to Curb Your Establishment's Risk.

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

Workplace violence imposes a staggering toll on businesses. Aside from the loss of life and injury posed to employees, customers, and others, workplace violence can diminish an establishment's brand, adversely affect its work environment and employee performance, pose significant liability concerns, and result in significant expense. However, you can reduce the risk for workplace violence in your establishment.

The first step in addressing workplace violence is to develop an awareness of what it is and the risk it may pose to your establishment. The term "workplace violence" extends beyond physical acts of violence or incidents of homicide. The Occupational Safety and Health Administration ("OSHA") defines "workplace violence" to include "any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site." Even when workplace violence goes unreported, it poses adverse effects upon the workplace and the appeal of an establishment.

Failure to take precautions to prevent workplace violence could implicate potential claims for workplace discrimination, civil liability, and result in potential OSHA violations. Under the Occupational Safety and Health Act of 1970, 29 U.S.C. §650, et seq., employers are required to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees." 29 U.S.C. §654(a)(1). Recently, OSHA has begun citing employers under this provision, commonly referred to as the general duty clause, for failure to address workplace violence hazards.

For example, earlier this year, OSHA entered into a corporate wide agreement with a Florida employer as part of a settlement involving workplace violence violations. Under the settlement, the employer, which operates correctional facilities in numerous locations across the country, is required to develop and maintain a workplace violence prevention program and conduct onsite workplace violence safety audits. Additionally, the employer is required to create a corporate level workplace violence coordinator and a workplace safety committee at each of its facilities.

In 2012, OSHA issued a Texas based convenience store owner with four serious violations relating to workplace violence following an aggravated robbery that resulted in the death of a store clerk, who was working alone when she was robbed and set on fire. OSHA determined that the fact that the employee was handling money, working alone, and standing behind open counters posed a significant risk to the employee for violent crimes. OSHA also concluded that this incident might have been avoided if the employer had conducted an analysis to identify the risk for violence and implemented workplace violence prevention measures. As a result of its investigation, OSHA issued general duty clause violations for each of the employer's stores for failure to address workplace violence hazards.

OSHA maintains a workplace violence webpage - www.osha.gov/SLTC/workplaceviolence - as a resource for employers to address the hazards associated with workplace violence. OSHA identifies several factors which may increase this risk including: exchange of cash with the public; isolated work environments; work performed late at night; environments where workers are alone or in small groups; employees who work as customer service agents; workers who provide services and care; and workplaces where alcohol is served. Each of these risk factors could apply with respect to businesses in the hospitality and restaurant industries.

Establishments in the hospitality industry should be especially concerned about prevention of workplace violence as most jurisdictions impose a legal duty upon them to protect guests from foreseeable criminal attacks. In general, an establishment owes its guests a duty to protect them from harm which is foreseeable. This may include failure to remedy foreseeable dangerous conditions which pose a threat to guest security and to protect guests from criminal attacks, including questioning suspicious persons on the premises.

However, an establishment is not an insurer of guest safety and is generally not liable for acts of violence which are not foreseeable. For example, in Landry v. S.C. Beach Hotel Partners LLC, No. H038246 (Calif. App. May 30, 2013)(unpublished), a California court of appeals held that a hotel was not liable for the injuries to a guest which resulted when she fell down stairs after being grabbed by three boys who were also guests at the hotel. After concluding that the boys' actions were unprecedented, the court upheld the trial court's decision that the hotel was not liable for the harm incurred since it was not foreseeable.

In addition to an employer's obligations under OSHA to address workplace violence, establishments should also be aware of their legal obligations to provide a workplace free from illegal harassment. This would include illegal harassment which is manifested through workplace violence. A single incident perceived by the victim as a threat of violence may suffice to create liability for workplace harassment. For example, in MacMillan v. Millennium Broadway Hotel, 873 F. Supp. 2d 546 (S.D.N.Y. 2012) a federal judge upheld a jury verdict against the hotel, holding that the jury was entitled to find that a single incident in which a management representative displayed a black faced voodoo doll with a noose around its neck sufficed to support a violation of Title VII of the Civil Rights Act of 1964 and New York City Human Rights law.

The plaintiff in MacMillan did not allege any actual physical violence occurred and continued to remain at work after raising his complaint. However, the plaintiff alleged that he considered the voodoo doll noose display to constitute a threat of violence. The hotel's human resources manager testified that the incident created chaos that led to a work stoppage and raised concerns about safety of the managers involved. Although the hotel immediately removed the display after it was brought to the attention of HR and conducted an investigation, it did not conclude that any wrong occurred and failed to discipline any of the management employees involved. A jury found otherwise concluded that the hotel was liable for creating a hostile work environment. This decision underscores the point that perceived threats of violence must be addressed and that effective enforcement measures must be taken, to include imposing prompt disciplinary action where appropriate.

Establishments must also be concerned about potential liability actions by guests for potential workplace violence incidents. These incidents may arise in several situations including incidents in which the guest is assaulted by a hotel employee, by a third party, or by another guest. Recently, in Gray v. Denny's Corporation, 525 Fed. Appx. 14 (2nd Cir. 2013) (unpublished), a federal court of appeals reinstated a complaint filed by a patron of a Denny's restaurant in Syracuse, New York who was physically assaulted by boisterous and profane guests at the restaurant. Kelly Gray alleged that after Denny's employees ignored her requests and failed to intercede, she was assaulted by the guests when she approached them and asked that they quiet down.

In Gray, the court of appeals noted that under New York state law, restaurants and facility owners have a duty "to make the premises reasonably safe for persons on the property." This duty includes taking "appropriate measures to protect persons on the premises from foreseeable criminal acts of third persons." Gray alleged that although the restaurant had internal policies which recognized profane language as "workplace violence" and was aware of the risks of disruptive customers, it failed to take action to reduce those risks.

In Hernandez v. Wyndam Hotel Management, Inc., No. 11C6635 (N.D. Ill. Sept. 9, 2013), a U.S. Magistrate addressed the issue of disruptive guests in the context of a hotel establishment. Lance Martin and Tony Oliver, who were sharing a room, could not sleep due to a party and loud noise coming from an adjacent room. After Martin complained to the front desk, the manager on duty was contacted and was getting prepared to speak with the guests and address the problem. However, in the meantime, the noise continued and an altercation occurred between Oliver and Louis Hernandez, a guest who had been at the party. Hernandez was stabbed before the manager made it to the scene. Although the court noted that the hotel had a duty to protect its guests and to address the noise complaint, which the manager was proceeding to do, the stabbing that occurred was not a foreseeable harm for which the hotel could be held liable.

Since the potential for workplace violence can exist in any establishment, it is important to take measures to minimize the risk. Here are some best practices to minimize such risk:

1. Develop a Workplace Violence Policy - The policy should be documented in writing and disseminated to all employees. It should clearly define workplace violence to include verbal and non-verbal threats of violence, as well as, physical acts of violence and assault. The policy should communicate a zero tolerance for workplace violence and encourage employees to promptly report incidence of workplace violence. Communicate to employees that retaliation for reporting workplace violence is prohibited. Establishments should also assign responsibilities to employees for responding to workplace violence incidents and identify ways for employees to prevent and mitigate such occurrence. Steps and procedures for reporting, responding to, and investigating workplace violence incidents must also be addressed in your policy. In addition to establishing a workplace violence policy, ensure that your workplace has an effective policy addressing workplace harassment.

2. Background Checks - Establishments should conduct background checks as necessary to ensure that employees who may have responsibilities and access that affects guest security do not pose a potential risk for harm. An establishment may face a liability if it employs a person who has the propensity for violence or assault which would have been disclosed if it had conducted a background check. Conversely, liability may be avoided when the establishment conducts a background check and the results do not disclose the potential for violence or assault. In Tomsic v. Marriott International, Inc., 739 S.E.2d 521 (Ga. App. 2013), a Georgia court of appeals upheld the dismissal of a claim against an Atlanta hotel by a guest who was sexually assaulted by the hotel's massage therapist. After beginning the massage session, the therapist put his hands around the guest's neck in a threatening manner, bruised her body and touched her inappropriately and sexually assaulted her. The guest sued the hotel for negligent hiring and retention of the therapist and failure to warn. The court noted that the therapist was appropriately licensed and the hotel had conducted a background check which did not reveal a propensity for sexual assault. Accordingly, the court held that the evidence was insufficient to establish that the hotel knew or should have known of the therapist's tendency to engage in such behavior. Establishments should ensure that background checks are conducted where necessary and consult with counsel to ensure that their procedures and policies for doing so are not discriminatory and do not violate federal and state laws.

3. Assess Your Risk - Conduct a hazard analysis of your establishment for trends and potential areas of vulnerability to workplace violence. Such an analysis should include a review of prior incidents of violence, identification of the areas and jobs where there is a greater risk for violence and a walkthrough of your establishment to identify potential security hazards. Consider potential ways in which workplace violence may occur or go undetected. Identify risk factors such as poor lighting, a lack of security systems, environments where employees may be working alone, and ineffective locks and communication systems. OSHA considers engineering controls to be the most effective means to address and protect against hazards because their effectiveness does not depend upon the human behavior factor. Examples of engineering controls include lighting, video surveillance systems, barriers to control and limit access, door detectors, and alarm systems.

4. Training - All employees should receive training on the workplace violence prevent policy and measures they can take to identify and minimize the risk of workplace violence in their job. Additionally, establishments should consider implementing routine checklists and procedures for employees to follow to respond to potential incidents that may pose a risk for violence and procedures to ensure for security.

Although the statistics and occurrence of workplace violence is alarming, there are measures your establishment can take to minimize the risk. Start now to develop a workplace violence prevention program and routinely assess the effectiveness of your program. Your efforts can save lives of your employees and your guests and improve the appeal of your establishment.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV® rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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