Workplace Violence: Employer Liability in Virginia and Potential VOSH Penalties

Workplace violence has become a serious issue for employers throughout the United States. In the wake of the shootings that occurred in San Bernardino, California and Hesston, Kansas, both of which occurred at the employer’s workplace, it is important for employers to be aware of the potential for violence in the workplace and ways in which it can be prevented.  Although these two incidents may not have been foreseeable or preventable, these incidents will nevertheless bring more attention to this issue.

Workplace violence can be categorized in three ways: 1) violence by an employee; 2) violence by a stranger; or 3) violence by a known third party. Depending on the facts of each incident, an employer may be faced with a lawsuit and/or a government investigation.  In Virginia, the law generally shields employers from liability for physical harm caused to employees or customers by the violent acts of employees or third parties.  However, even if an employer evades civil liability, employers may still be subject to an investigation by the Virginia Department of Labor Industry and incur significant penalties and fines.  Given the potential for both a civil suit and a government investigation, employers should implement workplace policies and programs that help keep the workplace safe and free of workplace violence.  This article details the potential civil liability and penalties that employers may incur from workplace violence incidents, and provides guidance on how prevent such incidents from occurring.

Vicarious Liability for Employee Conduct

Under the doctrine of respondeat superior, an employer is liable for the tortious acts of its employee if the employee was performing his employer’s business and acting within the scope of his employment when the tortious acts are committed. When an employer-employee relationship exists, the burden is on the employer to prove that the employee was not acting within the scope of his employment when he committed the act complained of.  The test of liability is not the motive of the employee in committing the act complaint of, but whether the act was within the scope of the duties of employment in execution of the service for which the employee is engaged. Plummer v. Center Psychiatrists, Ltd., 252 Va. 233, 236-37 (1996) (quoting Commercial Bus. Sys., Inc. v. Bell South Servs., Inc., 249 Va. 39, 45 (1995)).

Generally, an act is within the scope of employment if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business. Gina v. Chin & Assocs. v. First Union Bank, 260 Va. 533, 541 (2000).  However, the analysis established by the Virginia Supreme Court creates a rebuttable presumption of employer liability as long as a plaintiff can demonstrate an employee-employer relationship. McNeill v. Spindler, 191 Va. 685, 694-95 (1950).  Although an employer can prove that an employee was not acting within the scope of his employment, if evidence leaves the question in doubt, it becomes an issue to be determined by the jury at trial. Kensington Assocs. v. West, 234 Va. 430, 432-33 (1987).  Virginia courts are reluctant to resolve scope of employment issues pre-trial because it presents an issue of fact for the jury to decide. See Beach v. McKenney, 82 Va. Cir. 426, 439 (Charlottesville 2011) (noting that the issue concerning scope of employment presents “questions for the jury and [is] rarely decided on demurrer); see also Plummer, 252 Va. at 238 (counselor engaging in unethical sexual relationship with patient was potentially acting within scope of employment); Commercial Business Systems, Inc. v. Bell South Servs., Inc., 249 Va. 39, 46 (1995) (employee violating company rule against self-dealing and accepting illegal bribes to award contracts was potentially acting within the scope of employment).

Negligent Hiring and Negligent Retention

An employer also risks liability for its employee’s violent act if it knew or should have known that the employee was a danger to others. An employer may be liable for negligent hiring for failing to exercise reasonable care in placing an individual with known propensities, or propensities that should have been discovered by reasonable investigation, in an employment position in which, due to the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.  Interim Pers. of Cent. Va. v. Messer, 263 Va. 435, 440 (2002).  Negligent retention is a distinct cause of action in which an employer knows or should know of an employee’s incompetence, negligence, or unfitness for a position. Southeast Apartments Mgmt, Inc. v. Jackman¸257 Va. 256, 261-62 (1999).  Of particular note with regard the necessary elements of a negligent retention claim, the federal and state courts in Virginia differ.  Unlike the Virginia state courts, the federal courts require a showing of “physical injury.” See Zeng v. Elec. Data Sys., 1:07cv310; 2007 U.S. Dist. LEXIS 44412, at *7 (E.D. Va. June 18, 2007).

Violence by Third Parties

Employers may be liable to an employee or customer that was injured by a third party if the employer knew of the danger or it was reasonably foreseeable. Because an employer has a duty to guard against the intentional or criminal conduct of others, an employer may be personally liable if the employer knew of the danger posed by another employee or such danger was reasonably foreseeable.  Virginia courts have traditionally stated that assaultive criminal behavior by unrelated third persons is not reasonably foreseeable, but prior known incidents of violence may be sufficient to raise an issue of fact for a jury to decide. A.H. Rockingham Publ’g Co., 255 Va. 216, 220 (1998); Magallon v. Wireless Unlimited, Inc., 85 Va. Cir. 460, 465 (Fairfax 2012).

The Exclusivity Rule of the Virginia Workers Compensation Act

Employers are generally not liable to its own employees for workplace violence where the injury arises out of and in the course of the employee’s employment. Va. Code § 65.2-300.  Personal injuries claims are generally preempted by the Virginia Workers’ Compensation Act (VCWA) as the employee’s sole and exclusive remedy against the employer.

To the extent that an employee’s injury does not come within the ambit of the Act, however, the employee’s common-law remedies against his employer are preserved. Adams v. Alliant Techsystems, Inc., 261 Va. 594, 599 (2001); Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 798 (1942).  An injury is only covered by the VWCA if the injury satisfies both the “arising out of” and the “in the course of” prongs of the statutory requirements of compensability.  With regard to the “arising out of” prong, Virginia courts apply an “actual risk” test to determine whether a particular injury satisfies these statutory requirements rather than the “positional risk” test – where simply being injured at work is sufficient to establish compensability. County of Chesterfield v. Johnson, 237 Va. 180, 185 (1989).

Under the “actual risk” test, an injury only comes within the VWCA if there is a causal connection between the employee’s injury and the conditions under which the employer requires the work to be done. Butler v. Southern States Cooperative, Inc., 270 Va. 459, 465 (2005).  If an assault is personal to the injured employee and not directed against him as an employee or because of his employment, Virginia courts have consistently held that the resulting injury does not arise out the employment, and the VCWA does not apply. Hilton v. Martin, 275 Va. 176, 180 (2008).

OSHA/VOSH Implications

In addition to the potential civil liability that employers face, Virginia Occupational Safety and Health (VOSH) may also cite and fine employers for workplace violence violations. Virginia’s State Plan has adopted the majority of the Federal OSHA Standards that relate to state and local government and private workplaces.  Virginia employers should be aware that workplace violence incidents could spark an investigation by VOSH, and potentially lead to significant fines and penalties.

Workplace violence has become a hot button enforcement issue for OSHA over the past few years, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts. OSHA contains a general requirement, applicable to every employer, that imposes an obligation on you to maintain a safe workplace. The general duty clause requires employer to provide employees with a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm. This obligation is an open-ended one because it is designed to protect employees in situations where there are no established standards. Thus, an employer’s potential liability under the General Duty Clause is open-ended.

VOSH does not have a standard or any guidance regarding workplace violence, however, Federal OSHA has issued numerous guidance documents for employers to consider over the past few years, and it encourages employers to implement workplace violence prevention programs. OSHA has relied heavily on these guidance documents in issuing citations, and treat the guidance more like a safety and health standard rather than suggestive guidance.  Considering nearly 10 percent of all workplace fatalities result from intentional violent acts, employers will likely see an increase in workplace violence citations.

Measures to Mitigate Workplace Violence

There are several ways in which employers can mitigate the potential for violence in the workplace. Employers should begin by reviewing OSHA’s guidance regarding workplace violence – some of which is specifically related to certain industries such as the healthcare and late-night retail industries.  In light of OSHA’s increased emphasis on workplace violence issues, employers should review their violence prevention programs or policies and update them accordingly.  Workplace violence assessments should be conducted periodically to help employers improve their workplace violence prevention programs.  Employers can conduct visual observations of the workplace and issue employee questionnaires to identify potential hazards.  A careful review of recent incidents can also help identify the potential gaps in an employer’s workplace violence program.

Training and educating employees on workplace violence issues should also be provided on a routine basis. Training programs focused on topics such as workplace violence, domestic violence, and robbery deterrence help educate employees about the hazards they may face in the workplace, how to prevent protect themselves and co-workers, and how to respond to workplace violence incidents.  Finally, employers should make sure that managers and supervisors are vigilant in the workplace.  Ensuring that managers and supervisors are focused on resolving employee issues in the workplace before it escalates to violence should be a priority for employers.

For further information regarding an employer’s legal obligation to address workplace violence and the implications if they fail to do, review our firm’s recent webinar on workplace violence issues presented by Kara Maciel and Eric Conn.

 

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