Violence in the workplace is a real and growing problem that has received much media attention these past few years.
And while increased attention to the threat of violence employees face is a good thing, non-stop press coverage on horrifying acts of coworker violence ignores the almost daily attacks on convenience store clerks, cashiers, taxi drivers, delivery drivers, restaurant managers, security guards, retail sales workers, and police officers by others.
Nonfatal workplace violence is a significant contributor to injuries on the job. Estimates vary, but one recent estimate states that nearly 2 million people are assaulted while at work or on duty each year. Many of these instances of workplace violence go unreported.
Fatal workplace violence is a problem as well. In 2015 there were more than 400 workplace homicides. That means murder accounted for close to 10 percent of all fatal occupational injuries that year, with armed robbers responsible for many of these workplace homicides. The number of workplace murders has remained high the past few years.
Unfortunately there is nothing that will eliminate all workplace violence. But there are things you and your employer can do to make the job safer.
And you have legal options if you are the victim of workplace violence.
The point of this article is to examine workplace violence, what you and your employer can do to make work safer, and what your legal options are if you are injured by violence while on the job.
The article addresses:
If you have a question about workers compensation, or are looking for a top-rated attorney in Virginia, call me: 804-251-1620 or 757-810-5614. I’m ready to help.
Workplace violence is defined in various ways.
The National Institute for Occupational Safety and Health defines workplace violence as “violent acts, including physical assaults and threats of assault, directed toward persons at work or on duty.”
Attacks causing physical injuries and homicide, one of the leading causes of job-related deaths, are obvious examples of workplace violence.
But if you’re reading this article then you likely understand that workplace violence is not limited to physical assault and battery, such as shooting, stabbing, hitting, kicking, punching, head butting, choking, and other forms of striking.
It includes:
Even the fear of attack, which can escalate to physical violence, or the witnessing of violence can affect your health permanently and prevent you from performing your regular job. And when this happens, you may be entitled to workmans comp.
Workplace violence usually falls into one of the following four categories:
Let’s discuss each category of workplace violence.
There is no federal law that states your employer has a duty to prevent workplace violence.
But the OSH Act does state that an employer has a duty to provide a safe work environment.
This responsibility is found in the General Duty Clause, which requires an employer to provide a workplace that is free from recognized hazards that are known to cause or are likely to cause death or serious injury.
An occurrence of workplace violence may result in the Occupational Safety and Health Administration citing an employer and forcing it to pay a large fine.
Each year millions of American workers are victims of workplace violence. Assault, battery, and hostility can strike any work environment. Everyone in the work force is at risk.
Some employees, however, are at greater risk of suffering bodily injury or mental harm because of workplace violence. This includes:
Healthcare workers are also at increased risk for workplace violence. One recent study found that healthcare workers – those employed in hospitals, nursing homes, and other healthcare settings – were four times more common to suffer injury from an incident of serious workplace violence than the private industry average. Hitting, kicking, shoving, and beating were common occurrences.
Patients are the largest source of workplace violence in healthcare. But nurses and other healthcare professionals face additional risks, such as visitors, coworkers, and vendors.
Avoiding workplace violence is often out of your control. Nothing can guarantee that you won’t become a victim of workplace bullying, harassment, assault, or battery. Or that you won’t be a witness to these same things.
But there are steps you can take to reduce the likelihood that you experience workplace violence. These steps include:
I understand that some of these things are unavoidable if you want to keep your job. But if you can reduce the amount of times you have to do them or are able to get your employer to accommodate your concerns, you lower the risk of being a victim of workplace violence.
Employers can take a number of steps to reduce the risk of violence in the workplace. These steps include:
Though the following actions won’t protect employees from workplace violence, they may help with the physical, mental, and financial recovery:
If you are the victim of a workplace attack, including assault, battery, or harassment, I recommend doing the following:
You must prove that you suffered an injury by accident arising out of and in the course of your employment to receive workmans comp in Virginia.
In cases of workplace violence, it is usually easy to prove that you suffered a bodily injury and that the injury was sustained in the course of your employment.
The difficulty in receiving workers comp for workplace violence is in proving that the attack arose out of the employment. Virginia is an “actual risk” state. It is not enough that you were assaulted at work.
You must prove that you were assaulted because of your employment.
There are two ways to establish this causal link in workplace assault cases.
First, you can receive workers comp by proving that the conditions of the employment raised the risk of assault. This is done by showing that the probability of assault was increased because of the nature of your job. For example, carrying or handling cash may increase the risk that you are robbed or assaulted while at work. Relevant evidence may include testimony regarding the number of employees assaulted, police reports establishing visits to the job site, and statistics showing that the place of employment is in a neighborhood with a high crime rate.
Second, you can receive workers comp if you can prove that your employment motivated the attacker. You must show that you were assaulted because you were an employee. Often this is easy. For example, if you are robbed because you are the pizza delivery driver you will receive benefits. Any piece of evidence that helps determine the attacker’s motive – such as a statement that he or she doesn’t like your company – can help prove entitlement to benefits.
These two methods overlap significant ways. Put simply, you must prove that you were robbed because you were an employee and not for personal reasons.
Virginia Code Section 65.2-306(A)(2) states that an injured worker or his dependents may not receive compensation if his injury or death was caused by his attempt to injure another person.
Using this statute the Workers Compensation Commission has denied claims for benefits when the employee was the aggressor or provoked the attack.
What type of behavior or acts arise to the level of “provoking” an attack is not clear. But the Commission has held that a single derogatory remark made by an employee as he walked away, after several derogatory and profane remarks uttered by a coworker, is not sufficient provocation for an assault and does not violate Code Section 65.2-306(A)(2). The employee in that case, therefore, received benefits.
Another question that arises under this code section is whether an employee may fight back when attacked, and still receive benefits. Or whether an employee can only receive benefits if he or she allows another person to attack them without resistance.
Fortunately the Commission has held that an injured employee is eligible for benefits when he is not a willing participant in a fight and attacks only to defend himself.
Those of you who are victims of violence in the workplace and who prove that you are entitled to workers comp may receive the same benefits as other injured workers. These benefits include:
As your attorney I’ll also help you negotiate a top-dollar settlement so that you can move forward with your life.
Workers comp is the exclusive remedy for most on-the-job injuries. This means you cannot sue your employer in circuit court for negligence causing your injuries. For example, a negligent hiring claim against your employer based on a physical assault by a co-worker would fail in civil court.
But sexual assault by an employer or fellow employee is treated differently under Virginia Code Section 65.2-301.
Section 65.2-301, entitled Victims of Sexual Assault, states:
A. Any employee who, in the course of employment, is sexually assaulted … and promptly reports the assault to the appropriate law-enforcement authority, where the nature of such employment substantially increases the risk of such assault, upon a proper showing of damages … shall be deemed to have suffered an injury arising out of the employment and shall have a valid claim for workers compensation benefits.
B. Notwithstanding the provisions of this title, an employee who is sexually assaulted and can identify the attacker may elect to pursue an action-at-law against the attacker, even if the attacker is the assaulted employee’s employer or co-employee, for full damages resulting from such assault in lieu of pursuing benefits under this title, and upon repayment of any benefits under this title.
C. Nothing in this title shall create a remedy for sexual harassment, nor shall this title bar any action at law, that might otherwise exist, by an employee who is sexually harassed.
This code section does a few things:
Nothing in this code section prevents you from pursuing both a workers comp and a third party claim if the attacker is not a co-worker or employer.
I’ve successfully resolved and negotiated Virginia workers compensation settlements for many victims of violence in the workplace. These employees include:
The workers comp, personal injury, and criminal justice systems won’t change what you’ve been through. But the money damages and medical care available to you if you are a victim of violence at work can help you restore some normalcy in your life.
Call now for a free consultation: 804-251-1620 or 757-810-5614. You must act quickly to make sure you satisfy the workers compensation statutes of limitations.
As a Virginia work injury lawyer I’ve represented hundreds of injured employees and their families. And no matter where you’re located – Richmond, Chesterfield, Newport News, Hampton, Norfolk, Virginia Beach, Chesapeake, Fredericksburg, Staunton, Charlottesville, Fairfax, Loudoun County, Roanoke, or Manassas – I can help you. Just call.