Published on August 19th, 2012 by Alan Sklover
Question: I’ve been a victim of a physical altercation with a co-worker. He “chest-bumped” me three times trying to provoke a fight. He outweighs me 100-150 pounds, took Karate, plays violent video games, and has a concealed gun permit. He has even bragged about having a gun in his car. I’m now fearful of my safety at work!
I’ve filed a complaint with the company. I’m in a hostile and unsafe work environment. I’ve informed the federal Occupational Safety and Health Administration (“OSHA”), and have filed a police report of the incident. I’m off work now due to the altercation.
What should I do next legally?
Answer: Dear Bill: Workplace violence is a very, very serious subject, and one that all employees and employers, and all others, really need to treat in a serious fashion. All too often threats turn into actual injury or death, and the “chest-bumping” and other characteristics of your victimizer as you describe them, sure seem to paint a vivid picture of real risk of future violence.
1. One immediate “legal” step you might consider is petitioning a local court for an “Order of Protection.” One “legal” step you have apparently not taken, but is available to you, is to request from a local Court an “Order of Protection.” This is a Court Order requiring your vicitimizer to refrain from a variety of things which might include (a) threatening you, (b) glaring at you, (c) even coming within 100 feet of you, under threat of immediate arrest if he violates it. Though most common in domestic disputes between husbands and wives, such Orders of Protection are available to anyone in your circumstances. Your local District Attorney should be able to assist you in this regard. If you wish, you may hire an attorney to assist you, as well.
2. Under U.S. federal workplace safety laws, employers are responsible for ensuring a safe working environment for their employees. The federal Occupational Safety and Health Act, which is administered by the OSHA agency, applies to virtually all employers. It requires employers to furnish employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. If an employer has reason to know of possible workplace violence (by means of threats, intimidation or stalking, as examples) but does not take appropriate steps to protect its employees, OSHA may impose civil fines and penalties ranging from $5,000 to $20,000 per violation, depending on the seriousness of the threat. Most states have laws similar workplace safety laws and agencies.
3. If you have been financially “injured” – due to medical expense, or lost income due to being out of work – you may be able to collect “Workers Compensation” benefits, provided you have filed a Workers Compensation claim. In the early twentieth century, as we evolved full-gear into an industrial society, many workers suffered injuries on the job due to industrial accidents. As a society, we decided it was best to create a way to take care of these workers and, at the same time, avoid an untold number of employee-vs.-employer lawsuits from clogging our courts. All states that I know of created a special kind of insurance fund for these claims and set up separate systems for filing such claims. All employers are legally required to contribute into these Workers Compensation funds, as a legal requirement of being an employer.
If you did suffer such costs, you do need to consider filing a Workers Compensation claim. You would ask your employer’s Human Resources department for the necessary information, and it would be best to locate and retain a specialized Workers Compensation attorney to assist you. (Incidentally, in all states I know of, legal expense is a covered expense; the injured worker does not have to pay any legal fees.) Bear in mind that a claim for Workers Compensation is not a claim or lawsuit against your employer, but instead merely a claim to an insurance fund set up for this very purpose.
One significant limitation on Workers Compensation is that the injury – here, the “altercation” would have to be “connected” to the job, that is, arise directly from it.
4. If, however, your injury did not arise “in connection” with your job, Workers Compensation may not be available to you. If an employee loses a hand due to a malfunctioning machine, it is clear that the injury arise “in connection” with the job. What if an employee is beaten up by a co-worker? As a general rule, Workers Compensation is available if the altercation arose in connection with the job, say, for example, if you were driving a forklift, drove over your co-worker’s toe, and he then slugged you. However, as a general rule, if you played poker on Saturday night with your co-worker, and he accused you of cheating, and a fight arose at the office, then that injury would not be one eligible for Workers Compensation coverage. If you are not eligible for Workers Compensation benefits, or believe you may not be, then you are free to consider both (a) threatening to sue your co-worker for (i) battery (which is generally defined as unlawful touching) or (ii) assault (which is generally defined as threatening a battery), or (b) threatening to sue your employer for negligence.
5. If your injury is not covered by Workers Compensation, then you might consider raising a legal claim (that is, a potential lawsuit) against your employer if you believe it has been negligent in (a) hiring, (b) failing to properly supervise, or (c) retaining, a person it has reason to know has been violent or threatening in the past. In your note to me, you did not note serious injury, and you did not say you were interested in leaving your employment. If either is the case, you could consider raising a legal claim against your employer if you feel it has been negligent in this matter in the ways I have noted above, and either hire an attorney to help evaluate any such claim before raising it with your employer.
If you think leaving your job might be the wisest course of action, and that you have a legal claim for employer negligence, then you might, too, consider asking for a reasonable severance package to assist you in leaving and finding a new job elsewhere.
We offer a Model Letter entitled “Proactive, Pre-Termination Request for a Severance Package” that might be of help to you in the event you choose this path. To obtain a copy, just [click here.]
6. Please bear in mind: the seriousness of some injuries – physical and emotional – may not arise for weeks, months or even years. As my friends and I age, we realize more and more how the “bumps, bruises and blemishes” of life may have unforeseen and later-arising consequences later in life. That is true, for example, for sports accidents, which may lead to later consequences that are far more serious than were originally thought. And, as are experienced by soldiers returning from combat zones, these are both emotional and physical. I ask you to bear this in mind in all of your decisions as to what steps may be prudent, especially legal ones. I say this because there is a deadline – called a “statute of limitations” – for the filing of every kind of claim you can now bring, and so your tardiness in filing a legal or Workers Compensation claim by one day past that deadline may make your claim totally unenforceable. Statutes of limitation are different for each legal claim, and vary a bit from state to state. In most states, the minimum statute of limitation for any claim is one year from the date of occurrence.
7. As both a legal step and a practical step, it’s important to continue to demand safety from your employer, and possibly, too, to demand certain cautionary preventive steps be taken. For your protection, to proactively prevent any possible harm to you, and to support any case you may take in the future, I strongly suggest continuing requests to your employer to protect you from such potential harm, and to include in such requests any ideas you may have for what may be helpful – and reassuring – to you.
Such steps and measures might include, among others: (a) asking other employees to closely observe your victimizer’s actions and statements for acts or words that might suggest anger, hostility or a likeliness to strike back; (b) physically searching your victimizer’s car, desk and locker each time he reports to work; (c) physically searching your victimizer’s clothing and backpack or briefcase when he arrives to work; (d) giving your victimizer absolute warning that he is being closely observed and will be arrested if he engages in threatening words or actions; (e) installing metal detectors that your victimizer must pass through to get into the workplace; (f) hiring armed guards to patrol your victimizer’s area of work; (g) requiring your victimizer to undergo a psychiatric evaluation to assess future potential risk; (h) transferring your victimizer’s worksite to a different location or different department; and (i) even demanding that your employer immediately fire your victimizer.
When “demanding” these and similar steps be taken by your employer, you must be respectful, and it’s a good idea to remind them of their legal obligations in this regard under the federal Occupational Safety and Health Act noted above.
8. Of course, the best way to communicate anything related to such claims, or related “legal steps,” is by email. Email is a wonderfully reliable and credible way to communicate anything that is important to you, and at the same time make a record of exactly what you expressed, to whom you expressed it, when you expressed it, and whether they received it or not. When emailing anything of this nature, it’s a good idea to “bcc” (that is, send a “blind copy”) to your home email address so that you have a copy of what you sent on your home computer.
9. Nothing is without risks of various kinds, including retaliation, but there is no greater risk than present risk to life and limb. I anticipate that you say to yourself, “But I might get my victimizer upset and angry if I take any of these steps.” I acknowledge the validity and reality of that fear, and the true possibility that it may be what takes place. That said, you could be harmed if you don’t take any steps above those you have already taken. Also, I am convinced that usually – though not always – victimizers are more likely to hurt others unless they are reminded that to do so might hurt themselves even more. There is always a risk that a victimizer might be enraged by what you may do, but there’s always a risk that the victimizer will not stop his or her victimizing unless you do what is necessary to stop them. Tough choice, no question, but one you must face at this time.
Bill, I hope this is some help to you. My prayers are with you. Good luck.
P.S.: For those who have fear of workplace violence, we offer a Model Memo to Your Employer Insisting on Protection from Workplace Violence. It can help you get the protection you need. “What to Say and How to Say It.” To obtain a copy, just [click here.] Delivered by Email – Instantly!
© 2012 Alan L. Sklover, All Rights Reserved.