Lou Michels and Rod Satterwhite are partners in the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.
posted on Friday, September 28, 2007 9:56 AM by Lou Michels

A Recent Workplace Violence Case Finds Potential Employer Liability

Workplace violence, and liability for it, have long been twin nightmares for the American employer.  The awful possibility that an employee with access to the workplace would go berserk because of some real or imagined slight, and attack people in a place where they spend more waking time than they do their homes is the stuff of human resource managers' worst dreams.  To then be sued after such an event is almost as bad, because it lays the blame for the deaths of coworkers squarely at the door of the employer.

 Such a case is Thacker, etc. v. DaimlerChrysler Corporation, et al., No. 05-CV-7285 (September 24, 2007), a recent decision out of a federal court in Ohio.  On a terrifying evening in January, 2005, at Chrysler's Toledo North Assembly Plant, an employee named Meyers used his employee access card to enter the facility.  Under his hooded jacket he was carrying a 20 gauge shotgun that he suspended from his body using a wire harness and cushioned with a pink stuffed animal.  Meyers then entered the supervisor office area by going through a door that had been wedged open with its bolt taped so that employees did not need a supervisor level access card to enter.  After forcing a supervisor to radio his victims to come to the office, Meyers shot and killed one person and wounded two others before taking his own life.  The murdered employee's wife sued, and the company attempted to defend by claiming a workers compensation bar to the negligence suit.  Typically, workers compensation covers all injuries at work absent a showing of a deliberate act by the employer with the intent to injure the employee, or a showing that the employer knew of a dangerous process (where injury was almost certain) and required the employee to work in its presence anyway.

 Using Ohio law in effect at the time (the standard has now been revised by statute), the Court determined that a situation where an employer has or might have knowledge of a person who is a threat creates a duty for the company to defend its employees.  Of course, the $64,000 question in this entire matter is what constitutes "knowledge".  Short of actual death threats, there is typically enough emotional back and forth between employees and/or supervisors that such activities would not set off any alarm bells. 

 In this case, Meyers, a 22 year employee, had a list of allegations against him that, unfortunately, are not particularly uncommon in the American workplace.  His girlfriend complained to at least one supervisor that Meyers used drugs, made threats and verbally and physically abused her; he had several warnings for absenteeism; he had allegations of drug use on the job; a report from a longtime friend and another coworker stated that he needed behavioral assistance; Meyers made accusations of wrongdoing against a supervisor that were later found to be untrue; he had been reprimanded for poor performance; and he had disagreements with his coworkers, in one case threatening to "kick" another worker's "ass". Meyers served three years in prison for various offenses prior to his employment.  Unknown to Chrysler, Meyers had been charged with possession of a loaded gun in his vehicle and was awaiting sentencing on this charge at the time he committed the murders.

While Meyers' preliminary conduct in this case was problematic, I don't believe the employer should be held to a standard that requires a crystal ball, which is what the court seems to say here.  Upon reviewing the so-called indicators presented by the shooter, I would suggest that an employer terminating an employee based on those factors would have a different type of lawsuit on its hands--for disability discrimination, at a minimum.  The biggest problem here seems to be that there was no single place where all of this knowledge about Meyers was collected so that someone could look at his behavior issues in their entirety.

 This is a tough case for employers.  However, it serves again to reinforce the idea that workplace safety involves more than just protecting people from the machinery.

Additional Note: Interestingly, in a case involving one of the other shooting victims, the federal court found that there was no liability for Chrysler because the record of the employee did not indicate violent tendencies which created the duty to defend noted above.  See Medlen, et al. v. Meyers, et al.

Comments

# re: A Recent Workplace Violence Case Finds Employer Liability

Friday, September 28, 2007 3:21 PM by Patrick Murphy
Let's take this down the same road but with the primary parties being an angry non employee male boyfriend, spouse, etc and a female ex-girl friend, spouse, etc, employee.

Violence that is now being called "Partner Violence" has always been a problem that has spilled into the workplace. The issue of foreseeability of the crime (usually a murder) by the company is the central issue. What then is a company to do if there were no key indicators of an impending attack. The courts seem to have difficulty differentiating between foreseeability of "street crime" and an intended attack on an employee-victim. The "crystal ball", regardless of how small, still rests with the employer to anticipate and react appropriately. Employee Assistance Program hotlines and awareness training must be in place and highly visible so that information can be shared. It seems that the original purpose of these programs has morphed into a basis for defense against an accusation of doing nothing.

These types of crimes are evident in all occupations. One area that is very prone is at school. The number of violent deaths in schools over the years includes teacher/teacher, teacher/administrator, and "partner"/staff members. Those don't seem to get the attention of large corporations.

It behooves all employers both large and small to educate themselves in this area.
Patrick Murphy
LPT Security Consulting

# re: A Recent Workplace Violence Case Finds Potential Employer Liability

Monday, June 16, 2008 6:42 PM by Felix P. Nater, CSC, Nater Associates, Ltd.
This unfortunate case illustrates how important it is for employers to consider the idea of multiple interventions to integrate their resources in defending against such civil liability by doing the right thing from the beginning for the right reasons.

Being prepared means having the employees extolling the employer's virtues relative to their genuine efforts to protect them and the workplace from the threat from within. Long gone from my philosophy is the notion that workplace violence is predictable. While we know that taking corrective actions can reduce the threat of escalation, no one predict the premeditated thoughts of the criminally bent assailant.

The process of protecting the workplace and ultimately the bottom-line requires a willingness to see beyond the financial commitment for the value-added benefit derived from truly investing in employee safety and security. One would imply from this statement that the pot is bottom-less, my idea revolves around taking baby steps that can be viewed as honorable effort.

Commitment to the preventing of workplace violence requires a properly trained workforce in aspects of workplace violence prevention and security awareness, coordination of physical security and access controls, convening threat assessment or advisory committees to aid in the process and a host of other potential interventions worth the investment.

In an era where the evidence of the potentially disgruntled employee's capability has been documented, being able to withstand the threat of a civil lawsuit requires a commitment to the safety and protection of employees all the time. That means being responsive to employee concerns and taking every utterance seriously to determine if capabilities exist.

As one who provides litigation support to clients as part of the integrated package we offer, my admonition of preparedness revolves around doing the right thing all the time for the right reasons. This unfortunate civil liability case is as unfortunate as the conditions that might have contributed to the fatal shots. Who really knows?