Chapter 1
Definitions, Statistics, and the Occupational Safety and Health Administration
Abstract
Any work that discusses workplace violence must first include a solid, universally accepted set of definitions. Chapter 1 defines workplace violence using the Occupational Safety and Health Administration (OSHA)-enhanced definition, which includes not only actual violence but threatening, harassing, stalking, and disturbing behavior. It also includes a look at workplace violence statistics, such as the more than 2 million official complaints lodged annually by U.S. workers for violations of the OSHA definition. This chapter also extensively discusses OSHA’s role in investigating and reporting these events, as well as how OSHA handles such reports and what they will expect from employers. The chapter concludes with a look at the actual monetary fines levied by OSHA in cases where an employer failed to provide and maintain a safe, secure working environment for their employees. Additionally, this chapter shows how the Uniform Crime Report of the Federal Bureau of Investigation (FBI) fails to collect data and report on workplace violence cases despite being continually updated to include new crime categories.
Keywords
Federal Bureau of Investigation (FBI)
employees
fines
hazards
lawsuits
National Institute for Occupational Safety and Health (NIOSH)
Occupational Safety and Health Administration (OSHA)
safety
threats
Uniform Crime Report (UCR)
workplace violence
“You see, but you do not observe. The distinction is clear.”
—Sir Arthur Conan Doyle, The Adventures of Sherlock Holmes (1892)
It is unfair to look at this tragic murder months later when all the pieces of the puzzle are revealed and all of the facts are known and wonder why no one saw the danger coming as easily as we can recognize it now. We have the benefit of knowing all of the facts but at the time, no one person knew everything that had happened. Amanda thought the restraining order would protect her, but restraining orders are largely prosecutorial tools, not bulletproof (or in this instance knife-proof) shields. Also Amanda, her coworkers and supervisors were not experts in personal security nor were they trained to assess threats. Because there was no repository of all of the facts and there was no one trained to assess them as a bigger picture, the events that occurred were viewed as individual, unconnected incidents. Yes, Amanda’s horrific death could have been prevented but only if the organization had trained their people to recognize distinct behaviors; only if the organization had given their people a process whereby they could report their concerns; and only if the organization had a team trained to investigate the concerns, assess the behaviors, and develop effective plans to deescalate threats and mitigate risks. And that is exactly what you will learn in this book.
Workplace Violence Is Not a Crime
There is no statute declaring that workplace violence is a criminal violation of the law. The actions that are commonly associated with workplace violence are prosecuted under a variety of laws related to making threats, committing intimidation or harassment, malicious vandalism, criminal damage to property, stalking, domestic violence, assaults, and homicide. The problem for those studying workplace violence is twofold:
1. There is no statutory definition of workplace violence.
2. There is difficulty in assembling accurate statistical data related to the arrests and prosecutions of workplace violence as not every commission of threatening behavior, intimidation, harassment, vandalism, damage to property, stalking, domestic violence, assaults, or homicide is related to workplace violence.
Reporting at the Federal Level
After much study in the 1920s, the Federal Bureau of Investigation (FBI) instituted the Uniform Crime Report in 1929. The Uniform Crime Report (UCR) is a database of local, state, tribal, and federal law enforcement statistics. The report details the number of incidents, offenses, victims, and offenders in three principle categories [1]:
1. Crimes against persons, which include
a. Assault
b. Homicide
c. Kidnapping
d. Forcible sex offenses, and
e. Non-forcible sex offenses
2. Crimes against property, which include
a. Arson
b. Bribery
c. Burglary
d. Counterfeiting
e. Destruction
f. Embezzlement
g. Extortion
h. Fraud
i. Theft
j. Motor vehicle theft
k. Robbery
l. Stolen property
3. Crimes against Society, which include
a. Drug offenses
b. Gambling
c. Pornography
d. Prostitution
e. Weapons violations
Workplace and its intertwined offense of domestic violence are nowhere to be found. As was illustrated in the death of Amanda Brown, many instances of workplace violence are the result of domestic violence that spills over onto the job site, so the two issues are very closely related.
The FBI’s UCR breaks out sex offenses into two categories: forcible and non-forcible. Theft of material and financial property are expanded to seven line items: burglary, embezzlement, fraud, theft, motor vehicle theft, robbery, and stolen property. But workplace violence is nowhere to be found within the report. And, on September 17, 2014, FBI director James B. Comey announced that the FBI would add cruelty to animals to the national UCR program as a unique category of offense to be reported in the “Crimes against Society” section. [2] But workplace and domestic violence are nowhere to be found within the “Crimes against Persons” category.
While there is no law enforcement repository of workplace violence definitions and statistics, there is a federal regulatory body in the United States that collects data and investigates an organization’s state of preparedness (and assesses fines for a lack thereof), which is the Department of Labor’s Occupational Safety and Health Administration, more commonly referred to as OSHA. OSHA defines workplace violence as follows: “Workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide.” [3]
The FBI’s UCR for 2012 (the last year available at the time of this writing) shows that there were 1,214,462 instances of crimes against persons (assaults, homicides, kidnappings, and sex offenses) in the United States. [4] Perhaps there are just not enough occurrences of workplace violence to justify breaking it out into its own line item on the UCR. However, OSHA’s website reports that “nearly 2 million American workers report having been victims of workplace violence each year. Unfortunately, many more cases go unreported. The truth is, workplace violence can strike anywhere, anytime, and no one is immune.” [5] Clearly there is a gap between the data reported by the FBI and OSHA. Let’s clear up at least some of the disparity:
• The FBI’s UCR shows arrests whereas OSHA’s data includes everything reported to OSHA and many of those incidents are handled within the reporting business without anyone being arrested or without any notification to the police.
• The FBI’s UCR details arrests for physical crimes against persons (assault, homicide, etc.) whereas OSHA is cataloging all incidents reported to them of physical violence, harassment, intimidation, threats, and verbal abuse. Therefore OSHA is collecting data from a larger pool of incidents than is reported and included in the FBI’s report.
• There are those who dismiss OSHA’s statistics stating that OSHA’s workplace violence data is inflated because it also includes other violations of the law in which a worker may be placed in danger, such as robbery, which is captured in the “Crimes against Property” section of the UCR. However, most all business robberies are reported to the police and this category has not reached 100,000 incidents in each of the UCR for the last two years. [6] Therefore the number of robberies in the United States is not causing statistically significant inflation in the workplace violence data reported by OSHA.
According to the FBI, the goal of the UCR is to “generate reliable information for law enforcement administration, operation and management” as well as to detect emerging social trends in criminal or other antisocial behavior. [7] In that regard it would be beneficial to know how many of those arrests for assaults and homicides were related to workplace and domestic violence so that the proper social, legislative, and law enforcement resources could be marshaled against this trend. This should not be difficult as it would be a programming change to the reporting police department’s existing computerized reporting system, asking the arresting officer if the offense being reported involved workplace or domestic violence.
OSHA’s Role
The Occupational Safety and Health Act was signed into law on December 29, 1970, and established the Occupation Safety and Health Administration as a part of the U.S. Department of Labor. OSHA’s mission is to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” OSHA [8] also has the duty to enforce a variety of whistleblower statues and regulations and protect workers that have made a claim to the agency from retaliation by employers or other employees.
Although OSHA currently has no specific standards for the prevention of workplace violence, it is covered under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970. [9] This section of the General Duty Clause states that employers must provide their employees with a workplace that is “free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” Therefore by applying OSHA’s definition of workplace violence any business, institution, or organization that has experienced any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior is on notice that there is a risk of serious harm or death to their employees and needs to implement a comprehensive workplace violence prevention program, including the implementation of physical controls within their work environment, training of their employees, and security measures appropriate to the level of the threat.
Further, OSHA protects employees from retaliation via Section 11(c)(1) and (2) of the General Duty Clause, which states:
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.
Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations … and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay. [10]
OSHA’s Involvement in Workplace Violence
In 2011 OSHA issued instructions to its compliance officers titled “Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents.” OSHA instructs its officers to initiate workplace violence inspections when “(1) responding to a complaint, referral, or a fatality or catastrophic event; and (2) conducting a programmed inspection where workplace violence is identified as an issue.” [11] A programmed inspection refers to any scheduled inspection whether routine or in response to a complaint. The inspection would include workplace violence if the location fits the risk factors explained later in the next section or if the subject of workplace violence is identified during the routine inspection.
These instructions also break out workplace violence into four distinct, but fairly self-explanatory, categories:
1. “Criminal Intent,” which OSHA defines as “violent acts by people who enter the workplace to commit a robbery or other crime…”
2. “Customer/Client/Patients” is defined as “violence directed at employees by customers, clients, patients, students, k inmates or any others to whom the employer provides a service.”
3. “Co-Worker” is described as “violence against co-workers, supervisors, or managers by a current or former employee, supervisor, or manager.
4. “Personal” is defined as “violence in the workplace by someone who does not work there, but who is known to, or has a personal relationship with an employee.”
OSHA Workplace Violence Inspections
As per their 2011 instruction to their officers (OSHA Directive Number CPL 02-01-052), here is what the OSHA officer will request or otherwise want to ascertain during their inspection:
• Review all incident reports concerning issues of workplace violence.
• Identify and interview all employees in charge of security and/or have responsibility for the workplace violence prevention program.
• Review the workplace violence prevention program to determine if the employer has implemented appropriate controls for work protection, including training, physical controls over the premises, secure work practices, and personal protective equipment (such as personal panic alarms), disciplinary records related to violence or aggression shown in the workplace, medical records related to workplace violence, police reports, and actions taken to prevent future acts of workplace violence.
• Identify jobs or locations with the greatest potential for workplace violence, as well as any processes and procedures that put workers at risk, including building layout, interior and exterior lighting, communication systems, and the absence of appropriate security systems.
• Interview all employees on all shifts who observed or experienced any acts of workplace violence.
• Interview first responders, police officers, managers, and any others who observed the incident or its aftermath.
If a serious workplace violence hazard is found to exist, the OSHA inspector will also be looking for the following:
• OSHA 300 (Injury/Illness) logs and 301 forms documenting injuries from workplace violence for the prior five years
• Injury reports specific to instances of workplace violence
• Past complaints or grievances noting the particular hazard
• Meeting minutes where workplace violence issues were discussed
• Workers’ compensation records documenting injuries from workplace violence
• Medical records regarding workplace violence incidents
• Police and security records documenting incidents of workplace violence
• Employee interviews, which include information on any previous incidents of violence
• Actual or potential employee exposure to workplace violence
• Documentation that the workplace violence hazard was reasonably foreseeable by the employer
• Documentation from business groups and associations affiliated with the employer identifying the problem of workplace violence
• Journal articles and research showing the existence of workplace violence in the given industry
• National Institute for Occupational Safety and Health (NIOSH) and OSHA publications related to workplace violence prevention
• National consensus standards
• State and local laws that address workplace violence in specific industries
• Documentation of any employees informing the employer of the hazard or related inspections of the employer
• Employer awareness of any prior incidents, injuries, or close calls related to workplace violence
• Any precautions or protective measures taken by the employer to prevent or minimize workplace violence
• Documentation of how the employer currently addresses workplace violence, including a security plan, training plan, presence of preventative plan, and other safety documents
• Interviews of management, including the person responsible for certifying the OSHA 300 logs
• Employee interviews
• Union complaints
• Employer awareness of local and state laws, that is, state or municipal licensing or accrediting regulations
• Documentation that the workplace violence hazard caused or was likely to cause serious physical harm such as employee interviews, injury and illness logs, and police reports
• Evidence of actual instances where employees were threatened with physical harm or seriously injured or killed as a result of workplace violence
• Documentation of any feasible abatement methods available with an explanation of how they would have materially reduced the hazard
In essence, OSHA is attempting to establish whether the incident was foreseeable, determine if the employer had a violence prevention plan, determine if the plan meet applicable industry standards, and determine if the plan was appropriate considering the criminogenic factors within the locality of the business. If OSHA’s determination is unfavorable, the business can expect to be fined and reap the negative publicity after the agency publishes their findings.
OSHA Risk Factors
OSHA also lists the following known risk factors to be considered when determining whether to initiate an investigation:
• Working with unstable or volatile persons in certain health-care, social service, or criminal justice setting
• Working alone or in small numbers
• Working late at night or during early morning hours
• Working in high-crime areas
• Guarding valuable property or possessions
• Working in community-based settings, such as community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities, and long-term care facilities
• Exchanging money in certain financial institutions
• Delivering passengers, goods, or services
• Having a mobile workplace, such as a taxicab
With this criteria, it is obvious that OSHA’s focus is mostly on health-care facilities, correctional facilities, retail and banking operations, and taxi and delivery services, targeting category 1 risks being perpetrated by those with criminal intent and category 2 risks, which is violence committed by a customer, client, or patient. They show few risk factors for acts of violence, harassment, or intimidation committed by a coworker or by an outsider with whom an employee has a personal relationship that has become abusive.
This seems shortsighted because coworker and relationship violence are preeminent factors in workplace-related incidents involving stalking, harassment, and physical assaults. Further, when examining six of the worst workplace violence shootings in the last 15 years – Columbine High School (April 1999, 15 dead and 24 injured); Virginia Tech (April 2007, 33 dead and 23 injured); Aurora, Colorado movie theater (July 2012, 12 dead and 70 injured); Sandy Hook Elementary School (December 2012, 28 dead and 2 injured); Washington Navy Yard (September 2013, 13 dead and 8 injured); and Isla Vista, California (May 2014, 6 dead and 7 injured) – we find that they had nothing in common with the risk factors that OSHA documents in their 2011 directive to their officers. None of these workplaces involved working with unstable or volatile persons, the workplaces were not staffed by one or small numbers of people, they were not businesses with late night or early morning risks, they were not in high-crime areas, the work being done in these locations did not involve guarding valuable property, these were not businesses involved in community-based services, they were not financial institutions, nor were they taxi cabs or delivery services. The facts show that workplace violence can happen anywhere irrespective of surrounding crime rates or whether or not elements in the workplace would be tempting for robbery or other criminal mayhem. To use OSHA’s own words “The truth is, workplace violence can strike anywhere, anytime, and no one is immune.” [12]
Over the last several years OSHA has evolved and expanded their definition and prioritization of workplace violence issues and it’s likely they will continue to do so. While they may not currently be addressing all of the factors we think they should, OSHA has a history of learning and adapting to trends and risks.
OSHA Fines and Lawsuits
Should OSHA decide to fine your business, the maximum penalty OSHA can assess, regardless of the circumstances, is $7,000 for each serious violation and $70,000 for a repeated or willful violation. However, there are circumstances whereby OSHA can multiply fines 10-fold. For example,
• If OSHA discovers a violation at your facility and fines you, then later returns and finds that the original violation has not been remediated, you can be fined 10 times the amount of the original fine.
• If OSHA fines you for one violation in a facility and you have multiple facilities within your operation, OSHA can inspect any or all of your additional facilities, and if they find that the same violation is present in one of the other facilities, they can issue you a citation for 10 times the amount of the original fine.
• Additionally, if OSHA fines you because they have determined that an employee was exposed to workplace violence, they can increase that fine by the number of additional employees their investigation shows were also exposed to the same risk. So if an employee files an OSHA complaint because someone who should not have been in your facility assaulted them and OSHA finds that you have no workplace violence prevention plan and determines that your access controls are inadequate, they could fine you $7,000 for the original complaint. If you are a small company with 20 employees, OSHA could also multiply that fine by 20 if they believe that everyone else was also at risk. That fine then becomes $140,000 and could seriously damage the profitability of the company for that fiscal year. If you are a moderate-sized company with 400 employees, there is the potential for OSHA to levy a $2.8 million fine if they felt that all 400 employees were at risk because of inadequate access controls and lack of a workplace violence prevention plan.
The information just detailed represents potential fines that OSHA could levy in worst case scenario situations. It is important to note that OSHA’s mission is to improve the safe and healthful work environment within the country, not to drive companies out of business thereby eliminating jobs within the community. The fines are merely tools to incentivize businesses to comply with safety standards and mitigate risks discovered during their investigations. Some recent examples of actual workplace violence–related fines issued by OSHA include:
• $6,300 in fines issued to Danbury Hospital in Danbury, Connecticut, in 2010 after OSHA’s investigation revealed 25 cases of injuries to staff members by patients during the prior five years. OSHA found that the hospital’s workplace violence plan was incomplete and ineffective at preventing these injuries. [13]
• $8,700 in fines assessed at ResCare Ohio in 2012 for exposing employees to workplace violence at the company’s Fairfield, Ohio, resident care facility. OSHA found that employees had been exposed to physical assaults during routine interaction with residents who had a history of violent behavior. [14]
• $78,000 in fines at Brookdale University Hospital and Medical Center in Brooklyn, New York. OSHA found approximately 40 incidents of workplace violence reported between February 7 and April 12, 2014, involving injuries to the head, eye, face, and groin, as well as employees subjected to intimidation and threats during routine interactions with patients and visitors. OSHA found that Brookdale management did not take effective measures to prevent assaults against its employees. OSHA cited Brookdale for one willful violation, with a proposed fine of $70,000, for failing to develop and implement adequate measures to reduce or eliminate the likelihood of physical violence and assaults against employees by patients or visitors. Brookdale was also cited and fined $8,000 for failing to correctly review and certify the OSHA 300A illness and injury reporting form and for not providing forms when requested by the authorized employee representative. [15]
• $71,000 in fines assessed against Corizon Health, a company that provides medical, dental, and psychiatric services to inmates at New York City’s Rikers Island Correctional Facility. OSHA’s investigation uncovered 39 instances of workplace violence in 2013 involving Corizon employees, up from 8 in 2011. [16]
OHSA is also very serious about protecting employees from retaliation after they have raised concerns to the agency. If OSHA’s investigation shows that retaliation was taken against an employee, they will typically file a lawsuit as shown in these examples:
• Helena, Montana (January, 2013) – The U.S. Department of Labor filed a lawsuit in the U.S. District Court for the District of Montana alleging that Helena-based Kbec Inc., a Dairy Queen franchisee, illegally terminated an employee for making complaints regarding workplace violence at the company’s facility. [17]
• Fort Lauderdale, Florida (February, 2013) – The U.S. Department of Labor filed a lawsuit in the U.S. District Court for the Middle District of Florida, Fort Myers Division, against Duane Thomas Marine Construction LLC and owner Duane Thomas for terminating an employee who reported workplace violence, in violation of Section 11(c) of the Occupational Safety and Health Act. [18]
What Every Company Should Do
1. Have a workplace violence prevention plan:
a. Communicate what you are doing to prevent violence and disturbing behavior.
b. Let your employees know what is expected of them.
c. Let your employees know what to report and how to report it.
2. Make sure your plan is appropriately and actively communicated to all employees so that there is no breakdown of awareness and responsibilities.
3. Review the risks that your company faces (get employee involvement, as employees on the front lines are much more familiar with the risks they face including some that may never have been communicated to management) and take appropriate measures to mitigate those risks.
4. Document your progress and processes.
5. Periodically review incidents and near misses that have occurred to insure that your mitigation plan and processes are still valid and that you have amended your plan and processes to mitigate new risks that have been uncovered. Document and communicate to your employees any and all improvements being made to your workplace violence prevention plan.
There will be an in-depth discussion of these topics in Chapter 5.
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