RYBICKI & ASSOCIATES P.C. LABOR AND EMPLOYMENT ATTORNEYS 31st Annual North Bay Employment Law & Human Resources Conference : Preparing for a Volatile Situation Presented by: Richard C. Rybicki RYBICKI & ASSOCIATES P.C 465 First Street West, Suite 300 Sonoma, CA 95476 (707) 222-6361 465 FIRST STREET WEST, SUITE 300 SONOMA, CALIFORNIA 95476 TEL (707) 222-6361 FAX (707) 222-6383 www.rybickiassociates.com
RYBICKI & ASSOCIATES P.C. LABOR AND EMPLOYMENT ATTORNEYS RICHARD C. RYBICKI Experience Richard Rybicki advises management on labor and employment law matters, representing employers, employer associations and employee benefit plans in courts and administrative proceedings throughout the United States. Mr. Rybicki also represents employers under state and federal labor relations laws, including collective bargaining, arbitration, and proceedings before the National Labor Relations Board, the California Agricultural Labor Relations Board, and the California Public Employment Relations Board. Prior to opening his own practice, Mr. Rybicki was a shareholder with the nation's largest labor and employment law firm. He is a contributing editor for The Developing Labor Law, the most widely recognized labor-management publication. He speaks and writes frequently on employment-law topics and has testified as an expert witness on issues such as wrongful termination, retaliation, and claims under the Sarbanes-Oxley Act. Mr. Rybicki is admitted to practice in California and before various federal District Courts, Courts of Appeal, and the United States Supreme Court. Affiliations Mr. Rybicki is a member of the American and California Bar Association Litigation, Labor & Employment Law, and Alternative Dispute Resolution sections. He chairs the Napa Bar Association Labor & Employment Law section and is past chair of the Sonoma County Bar Association Labor and Employment Law section. He also serves on the Napa Chamber of Commerce Executive Committee, on the Napa Valley College Hospitality & Tourism Management Program advisory board, and has taught or lectured at institutions such as the Stanford University Law School s Gould Center for Conflict Resolution, Sonoma State University s Wine Business Program, Napa Valley College, and the Culinary Institute of America Greystone. Education Cornell University - JD (Concentration in Advocacy) University of Cambridge - AD (Phil) (cand. ) University of California, Los Angeles - BA (Phil) 465 FIRST STREET WEST, SUITE 300 SONOMA, CALIFORNIA 95476 TEL (707) 222-6361 FAX (707) 222-6383 www.rybickiassociates.com
RYBICKI & ASSOCIATES P.C. LABOR AND EMPLOYMENT ATTORNEYS : Preparing for a Volatile Situation Richard C. Rybicki Rybicki & Associates P.C. 465 First Street West Sonoma, CA 95476 (707) 222 6361 Page 1
Workplace Violence OSHA: Workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. threats verbal abuse physical assaults homicide Workplace Violence U.S. Department of Labor: Over 2,000,000 incidents of workplace violence annually Many more unreported incidents Page 2
Workplace Violence Fourth leading cause of fatal occupational injuries in the United States. 4,547 fatal workplace injuries in 2010 506 were homicides Workplace Violence It can affect and involve employees, clients, customers, and visitors. Page 3
Type I: Outsiders Agent has no legitimate business relationship to the workplace Usually enters the affected workplace to commit a robbery or other criminal act Cashiers, janitorial, security guards, taxicabs irregular occurrences for at risk establishments Page 4
Type II: Customer/Client Agent is recipient or object of a service provided by the affected workplace or the victim current or former client, patient, customer, passenger, criminal suspect, inmate ; Law enforcement, correctional personnel; Medical care providers (hospitals, long term care, clinics, home health agencies); Mental health and psychiatric care providers; Alcohol and drug treatment providers; Social welfare service (unemployment, shelters, probation offices, child welfare); Teaching, administrative and support staff; Other types of service providers (justice system, customer service, delivery). Type II: Customer/Client Type II events occur on a daily basis in many service establishments Represent a more pervasive risk Page 5
Type III: Workplace Threats or assault by an individual with some employment related involvement with the workplace. Usually threat of violence or assault to an employee, supervisor or manager by: A current or former employee, supervisor or manager; or Outsider in dispute with an employee (spouse or lover, relative, friend or acquaintance). Much smaller proportion of fatal workplace injuries in California than Types I and II. Type III: Workplace Most common target is a co employee, a supervisor or manager of the assailant. revenge for perceived unfair treatment; domestic or romantic disputes where employee threatened by someone they have a personal relationship with outside of work. Page 6
Type III: Workplace Type III assailant's actions may defy reasonable explanation. Often motivated by perceived difficulties in relationship with the victim, or with the affected workplace, and by psychosocial factors which are peculiar to the assailant. Type III: Workplace Note: NIOSH separates Type III into two categories: Worker on worker Personal relationship (non worker vs. worker) Page 7
Hybrid Workplaces Occupations and workplaces at risk for more than one type of workplace violence event. Hospital emergency rooms Type I and II (patients, outsiders such as gang violence) Retail establishments Type I and III (robberies, domestic disputes) Page 8
Risk Factors Common risk factors include: exchanging money with the public; working with volatile, unstable people; working alone; working in isolated areas; providing personal services or care; Risk Factors Common risk factors include: working where alcohol is served; working late at night; working in areas with high crime rates. Page 9
At Risk Industries Workers who exchange money with the public; Delivery drivers; Healthcare professionals; Public service workers; Customer service agents; Law enforcement personnel; Workers who are alone or in small groups. Industry Example: Healthcare Handguns and other weapons among patients, families or friends; Use of hospitals for criminal holds and the care of disturbed individuals; Availability of drugs or money at hospitals, clinics and pharmacies (robbery); Unrestricted movement of the public in clinics and hospitals and long waits ; Low staffing levels during times of increased activity such as mealtimes, visiting times and when staff are transporting patients; Isolated work with clients during examinations or treatment; Solo work, often in remote locations; Lack of staff training; and Poorly lit parking areas. See https://www.osha.gov/publications/osha3148/osha3148.html Page 10
Industry Examples: Homicide taxicab driver liquor stores gas stations detective or protective services justice and public order grocery or convenience food stores jewelry stores small hotels or motels eating/drinking establishments Page 11
Effect on Workplace OSHA: Over one million lost work days each year OSHA: Over $50 million in lost wages OSHA: Billions lost to productivity, legal expenses, property damage, diminished public image, increased security Page 12
General Duty State and federal law impose a general duty to maintain a safe workplace Requires a workplace that is free from recognized hazards that are likely to cause death or serious harm California: IIPP California Division of Occupational Safety & Health ( DOSH ) California regulations require every employer to have an effective Injury and Illness Prevention Program in writing complies with 8 Cal. Code of Regulations 3203 Page 13
IIPP Requirements Management commitment/assignment of responsibilities; Safety communications system with employees; System for assuring employee compliance with safe work practices; Scheduled inspections/evaluation system; Accident investigation; Procedures for correcting unsafe/ unhealthy conditions; Safety and health training and instruction; and Recordkeeping and documentation. IIPP Models Employer may often use a model IIPP program published by DOSH DOSH also publishes a model IIPP for Workplace Security www.dir.ca.gov/dosh/dosh_publications/iipsecurity.html Page 14
Other Laws EEO laws: Workplace harassment (FEHA, Title VII, ADEA, etc.) Prohibit unlawful harassment Require investigation and corrective action Leave laws: Workers compensation, disability accommodation, state victim leave requirements Abusive Conduct Training Effective 2015, employers with 50 or more employees must include abusive conduct topic in state required harassment training. Abusive conduct means: conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer s legitimate business interests. repeated verbal abuse, derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person s work performance. a single act is not abusive conduct, unless especially severe and egregious. Page 15
Employer Injunction California Civil Code 527.8 Allows employers to seek injunction and temporary restraining order when: 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. Employer Injunction Requires a credible threat of violence" knowing and willful statement or course of conduct; that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family; that serves no legitimate purpose. Page 16
Employer Injunction Requires course of conduct" over a period of time, however short, evidencing a continuity of purpose: following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email. Page 17
Guidelines Federal Occupational Safety & Health Administration published Safety and Health Management Guidelines in 1989 www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=federal_reg ISTER&p_id=12909 Has since issued specific guidelines, such as for Health Care & Social Service Workers See https://www.osha.gov/publications/osha3148/osha3148.html#text5 Violence Prevention Program A written program for job safety and security, incorporated into the organization's overall safety and health program. Clear goals and objectives to prevent workplace violence suitable for the size and complexity of the workplace and adaptable to specific situations. Communicate information about the prevention program and startup date to all employees. Page 18
OSHA Suggestions Clear policy of zero tolerance for workplace violence, verbal and nonverbal threats and related actions. Ensure that managers, supervisors, coworkers, clients, patients and visitors know about this policy. Ensure that no employee who reports or experiences workplace violence faces retaliation. OSHA Suggestions Encourage employees to promptly report incidents and suggest ways to reduce or eliminate risks. Require records of incidents to assess risk and measure progress. Comprehensive plan for maintaining security in the workplace including liaison with law enforcement representatives and others who can help identify ways to prevent and mitigate workplace violence Page 19
OSHA Suggestions Assign responsibility and authority to individuals or teams with appropriate training and skills. Provide adequate resources and responsible individuals who develop expertise on workplace violence prevention in your industry. Affirm management commitment to an environment that places as much importance on employee safety and health as on serving the patient or client. Controversial? Set up a company briefing as part of the initial effort. OSHA Elements: Written Plan Management commitment and employee involvement; Worksite analysis; Hazard prevention and control; Safety and health training; and Recordkeeping and program evaluation. Page 20
Management Commitment Endorsement and visible involvement of top management; Demonstrating organizational concern for employee emotional and physical safety and health; Exhibiting equal commitment to the safety and health of workers and patients/clients; Assigning responsibility for the various aspects of the workplace violence prevention program to ensure that all managers, supervisors and employees understand their obligations; Management Commitment Allocating appropriate authority and resources to all responsible parties; Maintaining a system of accountability for involved managers, supervisors and employees; Establishing a comprehensive program of medical and psychological counseling and debriefing for employees experiencing or witnessing assaults and other violent incidents; and Supporting and implementing appropriate recommendations from safety and health committees. Note: NLRA issues for unionized workplaces. Page 21
Employee Participation Understanding and complying with the workplace violence prevention program and other safety and security measures; Participating in employee complaint or suggestion procedures covering safety and security concerns; Reporting violent incidents promptly and accurately; Employee Participation Participating in safety and health committees or teams that receive reports of violent incidents or security problems, make facility inspections and respond with recommendations for corrective strategies; and Taking part in a continuing education program that covers techniques to recognize escalating agitation, assaultive behavior or criminal intent and discusses appropriate responses. Page 22
Worksite Analysis Step by step, commonsense look at the workplace to find existing or potential hazards for workplace violence. Review specific operations that contribute to hazards and specific areas where hazards may develop. Use a task force or coordinator to assess vulnerability to workplace violence and determine appropriate preventive actions. Implement workplace violence prevention program with representatives from senior management, operations and human resources staff. Review records to identify patterns of assaults that could be prevented by workplace adaptation, procedural changes or employee training. Hazard Prevention and Control Engineering controls and workplace adaptations to minimize risk Remove the hazard from the workplace or create a barrier between the worker and the hazard. Includes physical modifications such as doors, locks, entry procedures, etc. Page 23
Hazard Prevention and Control Administrative and work practice controls to minimize risk Administrative and work practice controls affect the way staff perform jobs or tasks. Changes in work practices and administrative procedures: valuables in workplace, management response, etc. Hazard Prevention and Control Employer responses to incidents of violence Post incident response and evaluation; treatment for victims and traumatized witnesses; Prompt medical treatment and psychological evaluation whenever an assault takes place; Address non physical injury such as short and long term psychological trauma; Provide critical incident debriefing or other employee assistance. Page 24
Safety and Health Training Training for all employees Explain that violence should be expected but can be avoided or mitigated through preparation. Employees who may face safety and security hazards should receive formal instruction on the specific hazards associated with the unit or job and facility. The training program should involve all employees, including supervisors and managers. New and reassigned employees should receive an initial orientation before being assigned their job duties. Visiting staff should receive the same training as permanent staff. Qualified trainers should instruct at the comprehension level appropriate for the staff. Effective training programs should involve role playing, simulations and drills. Safety and Health Training Topics may include: management of assaultive behavior, personal safety training such as how to prevent and avoid assaults, A combination of training programs may be used, depending on the severity of the risk. Employees should receive required training annually or more often in large workplaces. Page 25
Safety and Health Training Training for supervisors and managers Recognize high risk situations, so they can ensure that employees are not placed in assignments that compromise their safety. Training to ensure that they encourage employees to report incidents. Learn how to reduce security hazards and ensure that employees receive appropriate training. Safety and Health Training Training for supervisors and managers Supervisors and managers should be able to: recognize a potentially hazardous situation; make any necessary changes in the physical plant, operations, or staffing to reduce or eliminate hazards. Page 26
Recordkeeping Evaluation How employers can determine program effectiveness Recordkeeping and evaluation of the violence prevention program are necessary to determine its overall effectiveness and identify any deficiencies or changes that should be made. Recordkeeping Evaluation Records employers should keep OSHA Log of Work Related Injury and Illness (OSHA Form 300). Medical reports of work injury and supervisors' reports for each recorded assault. Records of incidents of abuse, verbal attacks or aggressive behavior that may be threatening, such as pushing or shouting and acts of aggression toward other clients. Documentation of minutes of safety meetings, records of hazard analyses and corrective actions recommended and taken. Records of all training programs, attendees and qualifications of trainers. Page 27
Recordkeeping Evaluation Elements of a program evaluation Review the program regularly, and with each incident, to evaluate its success. Reevaluate policies and procedures on a regular basis to identify deficiencies and take corrective action. Recordkeeping Evaluation Reviewing reports and minutes from staff meetings on safety and security issues; Analyzing trends caused by violence relative to initial or "baseline" rates; measuring improvement; Surveying employees before and after making job or worksite changes to determine their effectiveness; Page 28
Recordkeeping Evaluation Surveying employees periodically to learn if they experience hostile situations; Complying with OSHA and State requirements for recording and reporting deaths, injuries and illnesses; and OSHA option: request periodic law enforcement or outside consultant review of the worksite for recommendations on improving employee safety. Page 29
Federal Resources OSHA is part of the DOL Maintains many resources education, NIOSH, etc. https://www.osha.gov/sltc/workplaceviolence/ CDC: http://www.cdc.gov/niosh/ State Resources Cal OSHA (DOSH) www.dir.ca.gov/dosh/dosh_publications/worksecurity.html Complaints: http://www.dir.ca.gov/dosh/complaint.htm Page 30
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RYBICKI & ASSOCIATES P.C. LABOR AND EMPLOYMENT ATTORNEYS Richard C. Rybicki Rybicki & Associates P.C. 465 First Street West Sonoma, CA 95476 (707) 222 6361 www.rybickiassociates.com Page 32