ao bmployers eave A auty To Maintain A pafe torkplace? ves.

aoes This lbligation Apply To bmployee siolence lr kon-bmployee siolence

lr Threats Epuch As aomestic siolence)? ves.

gerry Cunningham Eupdated guneI OMNMF

aomestic siolence And bmployer oesponsibilities:

Background Materials

lffJmremises fssuesW

NK A cocus ln siolence fnside lf and lutside lf qhe

torkplace

OK bmerging bmployer lbligations

• fK fntroductionK
• ffK aomestic siolenceW _ackground ln torkplace siolenceK
• fffK siolence And qhe torkplaceW qhe kew iegal ConnectionK bmerging siewW Corporate oesponsibilityK
aepartment of iabor bnforcement qrendsK
• fsK rnder that Circumstances Could An bmployer eave A auty qo mrevent aomestic siolence crom
lccurring ln fts mremises?
• sK bmployerJlbtained oestraining lrdersK
• sfK lregon iaw
fK fntroductionK

AK lffJmremises Conduct lf bmployees And konJbmployeesK J

qraditional Analysis

Jmrivacy fssuesK

_K eistorical iack lf bmployer oesponsibility cor PrdJmarty Criminal ActK

ffK torkplace siolenceW phort eistory

AK eomicideI the most extreme form of workplace violenceI is

the second leading cause of death in rp workplacesK
_K qhere were SIRUU deaths in NVV4; homicides accounted for
NIMTN of those deathsI or NS percentK

fn NVVOI the _ureau of iabor ptatistics reported 4P percent of all

women who died on the job were victims of violenceI compared to NU
percent for menK A study done in qexas found that RPB of women who
suffered workJrelated fatal injuries were murderedI as compared with
NPB of the men; other studies confirm that at least 4MB of all female
work place fatalities are murdersK fn NVVOI the rp purgeon deneral
ranked abuse by husbands and partners as the leading cause of injury
or death to womenK crom NVVOJV4I NT percent of the attackers of
women in the workplace were current or former husbands or
boyfriendsK qhis number is growingW ft was closer to R percent from
NVUTJNVVOK qhough women are less likely to be murdered at work
than menI women are about five to six times more likely than men to
be the victim of a crime committed by an intimateK

jost such criminal acts do not result in deathK According to ali

statisticsI ONIPMM workers were injured in nonfatal assaults in the
workplace in NVVP and women were victims in RS percent of these
assaultsK qhe aepartment of gustice stated that between NVUT and
NVVO about N million individuals each year were assaulted at workK
An annual breakdown isW SNRINSM simple assaultsI OS4INT4
aggravated assaultsI TVINMV robberiesI and NPIMSU rapesK
 _K ?A survey of cortune NMMM companiesI conducted for iiz
ClaiborneI fncK in NVV4I found thatW

JJ 4 out of NM corporate leaders surveyed were personally aware of employees

in their companies who have been affected by domestic violence;
nearly half E4V percentF said that domestic violence had a harmful effect on
their companyDs productivity;

JJfortyJseven percent said it had a harmful effect on attendance; fortyJfour

percent said it had a harmful effect on health care costs; oneJthird believed
domestic violence affected their balance sheet; and twoJthirds agreed that a
companyDs financial performance would benefit from addressing the issue of
domestic violence among its employeesK

JJ lnly NO percent said that corporations should play a major role in

addressing the issueK vetI over half ERU percentF of the NMM senior
executives who were interviewed sponsored domestic violence
awareness or survivor support programsI and nearly three quarters
offered domestic violence counseling or assistance programsK cortyJthree
percent said they would definitely respond to the problem in the future?K
pourceW tomenDs _ureauK
 lverall kumbersW lregon

fn a fiveJyear periodI approximately NNIMMM women who were physically assaulted and
TIRMM women who were sexually assaulted by intimate partners sustained serious injuriesI
including broken bonesI internal injuriesI head injuriesI and lacerations or knife woundsK

• cewer than O in R seriously injured women received medical careK

• Among women who did seek medical careI about three quarters of physical assault victims
and about half of sexual assault Estudy hereW
httpWLLtinyurlKcomLstudyTSTS

n ealf ERNBF of physical assault victims and oneJthird EPPBF of sexual assault
victims who answered detailed victimization questions reported that children
were in the household at the time ofthe most recent violent incident by an
intimate partnerK

n fn PPB of intimate partner physical assaults and OMB of sexual assaultsI a child
or children witnessed the eventK

n qhis translates into OSIVNM children who directly witnessed a physical assault
and NINTU that witnessed a sexual assault against a mother or adult female
caregiver within the past five yearsK

n OMMPW major study by CaCW “Costs of fntimate martner siolence Against

tomen in the rnited ptates”W httpWLLtinyurlKcomLcdcTRTR

n OMMVI extensive national studyW

§ “qhe research shows that acts of domestic violence often occur while a victim
is at work because work is the one place where perpetrators know they will
be able to find their victimsK merpetrators of violence visitI stalkI or harass
their targets at workK qhey may callI emailI faxI or otherwise disrupt a
workdayK qhey may also interfere with victims’ employment by preventing
someone from showing up to work or getting enough sleep before work
 Among other tacticsI they also may embarrass or otherwise cause
psychological distress that impacts job performanceK” aomestic siolence and
torkW iegal and _usiness merspectivesI (2009), jarcy iK harin and maula
phapiro – online hereW httpWLLtinyurlKcomLstudyTPTP

§ ptate of tashingtonW fs a tashington employer prohibited from terminating

an atJwill employee because he or she took leave from work to protect himJ or
herself from domestic violence? vesI according to last weekDs opinion from the
tashington pupreme Court in aanny vK iaidlaw Transit pervicesI IncK

§ jany employers now have written policies to guide managers in handling

cases where an employee is a victim of domestic violenceK pamples hereW
httpWLLendabuseKorgLsectionLprogramsLworkplaceL_dv_workplace_policies

§ qhe Centers cor aisease Control And mrevention has excellent materials for
OMNMW httpWLLtinyurlKcomLcdcSRSR

§ qhe c_f also has materials for OMNM; the c_f issued its first report in NVVSK
Current materials hereW httpWLLtinyurlKcomLfbiVTVT
qhreats qo bmployeesW bmployer lbligations

fffK siolence And qhe torkplaceW qhe kew iegal ConnectionK

AK qraditional siew fn kegligence iawW

n koneW qhirdJparty criminal conduct

Eiack of foreseeabilityF

_K bmerging siewW Corporate oesponsibilityK

NK qhe aepartment of iabor And deneral auty ClauseK

qhe deneral auty Clause Epection REaFF of the

lccupational pafety and eealth Act of NVTM requires
employers to provide a safe and healthful working
environmentK bmployers can be cited by lpeA under
the deneral auty Clause if there are recognized
hazards of workplace violence and nothing is done to
prevent or abate themK

OK eistoryW NVVOK

qhe ali stated to an employer in NVVOW

?Although currently there are no specific cederal lpeA

standards to address these problemsI the cederal lccupational
pafety and eealth Act Elpe ActFI in pection
 KK
REaFENFI provides that ?each employer shar furnish to each of his
employees employment and a place of employment which are free
from recognized hazards that are causing or are likely to cause death
or serious physical harm to his employeesK? fn a workplace where the
risk of violence and serious personal injury are significant enough to
be ?recognized hazardsI? the general duty clause would require the
employer to take feasible steps to minimize those s risksK cailure of an
employer to implement feasible means of abatement of these hazards
could result in the finding of an lpe Act violationK

ln the other handI the occurrence of acts of violence which are not
?recognized? as characteristic of employment and represent random
antisocial acts which may occur anywhere would not subject the
employer to a citation for a violation of the lpe ActK

thether or not an employer can be cited for a violation of pection

REaFENF is entirely dependent upon the specific factsI which will be
unique in each situationK qhe recognizability and foreseeability of
the hazardI and the feasibility of the means of abatement are
some of the critical factors to be consideredK?

PK eistoryW NVV4K

ln kovember TI NVV4I a meeting took place between lpeA officials

and the workplace violence labor coalitionK qhe organizations
personally represented included AcpCjbI pbfrI iaborersDI NNVVI
and other union officialsK Also present were representatives from the
tomenDs _ureau of the aepartment of iabor and lpeAK

qhe purpose of the meeting as stated by the labor coalition was to

?put lpeA on the record recognizing workplace violence?K

Consensus was reached on the following pointsW

 KK
GlpeA will make it a priority that employers follow the
appropriate recordkeeping and reporting requirements for
workplace violence incidentsK

GlpeA will issue general guidelines which will be developed with

the participation of business and labor communitiesK

GlpeA will issue guidance to its compliance officers on investigations

and inspections regarding workplace violenceK

GlpeA and its state counterparts will provide consultative

services to employers requesting assistanceK

GlpeA wir provide training to its compliance officersK

GlpeA officials agreed to concentrate on comprehensive

prevention programs rather than specific abatementsK

GlpeA officials agreed to educate the public as to the different

types of workplace violence in proportion to their frequency and
severityK

GlpeA officials agreed to continue working with other federal

agencies to identify the workplace violence hazards and their
reduction or prevention as information becomes availableK

4K eistoryW NVVSK

fn NVVSI the ali took the further step of issuing guidelines on

workplace violence and employersD obligations in specific industriesK
?duidelines for mreventing torkplace siolence for eealth Care and
pocial pervice torkers? and draft guidelines for night retail
establishments were issuedK
 KK
qhe ali isI thereforeI focusing on highJcrime businessesK
ali has taken the position thatI if an employer is in a highJ
crime businessI that employer must take affirmative steps to
reduce the possibility of injury to its employeesK

cor exampleI a night retail establishment is more likely to be the

target of an armed robbery than a manufacturing facilityK
AccordinglyI the night retail establishment has special dutiesK
According to aliI these include many areasK fn the area of
recordkeeping aloneI ali stated that employers in night retail
establishments must keepW

JlpeA iog of fnjury and fllness ElpeA OMMFK lpeA regulations

require entry on the fnjury and fllness iog of any injury that requires
more than first aidI is a lostJtime injuryI requires modified dutyI or
causes loss of consciousnessK Eqhis applies only to establishments
required to keep lpeA logsFK fnjuries caused by assaultsI which are
otherwise recordableI also must be entered on the logK A fatality or
catastrophe that results in the hospitalization of P or more employees
must be reported to lpeA within U hoursK qhis includes those
resulting from workplace violence and applies to all establishmentsK

Jjedical reports of work injury and supervisorsD reports for each

recorded assault should be keptK qhese records should describe the
type of assaultI iKeKI unprovoked sudden attack; who was
assaulted; and all other circumstances of the incidentK qhe records
should include a description of the environment or locationI
potential or actual costI lost timeI and the nature of injuries
sustainedK
 KK

Jfncidents of abuseI verbal attacks or aggressive behavior Jwhich

may be threatening to the worker but do not result in injuryI
such as pushing or shouting and acts of aggression towards
customers J should be recordedI perhaps as part of an assaultive
incident reportK qhese reports should be evaluated routinely by
the affected departmentK

Jjinutes of safety meetingsI records of hazard analysesI and

corrective actions recommended and taken should be documented

Joecords of all training programsI attendeesI and

qualifications of trainers should be maintainedK

As part of their overall programI employers should evaluate

their safety and security measuresK qop management should
review the program regularlyI and with each incidentI to
evaluate program successK oesponsible parties EmanagersI
supervisorsI and employeesF should collectively reevaluate
policies and procedures on a regular basisK aeficiencies should
be identified and corrective action takenK?

AccordinglyI while the majority of employers are not subject to

the guidelinesI it is clear that the trend is to increase the legal
obligations of employers to prevent workplace violenceK qhe
aliI for nowI is focused on those industries where violent crime
is a known quantityW for exampleI almost twoJthirds of the
nonfatal assaults in one recent year occurred in nursing homesI
hospitalsI and establishments providing residential care and
other social servicesK
fsK rnder that Circumstances Could An bmployer eave A auty qo
mrevent aomestic siolence crom lccurring ln fts mremises?

AK qhe deneral auty ClauseK

• ?each employer shall furnish to each of his

employees employment and a place of
employment which are free from
recognized hazards that are causing or are
likely to cause death or serious physical
harm to his employeesK?

_K California iabor Code pection S4MOW

•?ko employer shall requireI or permit

any employee to go or be in any
employment or place of employment
which is not safe and healthfulK”

CK California iabor Code pection S4MNKTW

JJ fnjury mrevention mrogramK
 aK fmplied lr bxpress Contractual
Commitments lf pafety

bK qhe ptandards bvolving fn qhe iaw

lf mremises iiabilityK

jost employers are also landlords or landowners; if notI they are

significant tenantsK fn any of those capacitiesI the employer controls
the premisesK An employer has various duties to ensure the
reasonable safety of individuals who come to its premisesK thile
duties to keep a safe workplace are often defined by statutesI such as
the California iabor CodeI duties to visitors to the employerDs
premises are not often defined by statuteK

qhe duties of an employer to visitors on its premises are defined by

negligence lawI and other areas of tort lawK qhusI in the event a
visitor is injured on an employer’s premisesI the important question
will beW did the employer take reasonable steps to ensure the safety of
the visitor? fn the pastI if a crime occurred on an employerDs premisesI
the typical defense was simply that no employer could reasonable
foresee an act of violenceI particularly by a nonJemployeeI and thus
the employer would not be liable for those nonJforeseeable actsK

qhe courtsI howeverI are not convinced anymore that crime is not
foreseeableK qhusI the courts can be convinced that in a particular
caseI the employer should have foreseen an act of violence and thus
should have taken better precautions to prevent an injury to a visitor
Eand its employees alsoF from occurring on its premisesK

fn a ganuaryI NVVTI the California pupreme Court wrestled with a

question in this area of law and set precedent for the recent casesK
A customer was in a hcC in which there was no history of armed
robberyK At gunJpointI a hcC clerk was told to turn over the storeDs
moneyK qhe clerk stalled; the gunman held the gun to the customeris
backI and the hcC clerk relented and turned over the moneyK qhe
gunman fled and the customer suedK qhe Court held that hcC did not
have a duty to just turn over the moneyK
fn reaching that conclusionI howeverI the pupreme Court
discussed the circumstances in which a business in charge of a
premises can be held liable for injuries to visitorsK qhe pupreme
Court saidW

J?a business proprietor is not an insurer of an invitee’s safetyK qhere is

a requirementI howeverI that reasonable care be taken for their
safetyI and liability exists for injuries resulting from a breach of that
duty of reasonable careK?

J?pince the possessor is not an insurer of the visitorDs safetyI he is

ordinarily under no duty to exercise any care until he knows or has
reason to know that the acts of the third person are occurringI or are
about to occurK

ee mayI howeverI know or have reason to knowI from past experienceI

that there is a likelihood of conduct on the part of third persons in
general which is likely to endanger the safety of the visitorI even
though he has no reason to expect it on the part of any particular
individualK

ff the place or character of his businessI or his past experienceI is such

that he should reasonably anticipate careless or criminal conduct on
the part of third personsI either generally or at some particular timeI
he may be under a duty to take precautions against itI and to provide
a reasonably sufficient number of servants to afford a reasonable
protectionK? EoestKOd qortsI §P44I comK fI ppK OORJOOSKF
there a warning of danger is not adequate to protect a patron from
intentional harmful acts of a third partyI a landowner must ?exercise
reasonable care to use such means of protection as are availableK?
EoestKOd qortsI § P44I comK dI pK OORKF then criminal conduct is
ongoingI that duty requires that the landJowner or occupier take such
appropriate action as is reasonable under the circumstances to protect
patronsI xcitation omittedFK

Jqhe oestatement rule continues to be the generally accepted test of

liability of a business owner for injuries on the business premises
caused by third party criminal conductK A land occupier ?must act as a
reasonable person to avoid harm from the negligence of contractors
and concessionaires as to activities on the landI as well as that of
other persons who have entered itI and even from intentional attacks
on the part of such third personsK ee is required to take action when
he has reason to believeI from what he has observed or from past
experienceI that the conduct of the other will be dangerous to the
inviteeI but not if there is no reason to anticipate a problemK? Emrosser
C heetonI qorts ERth edK NVU4F fnviteesI § SNI pK 4OUI fnsK omittedKF
Eemphasis addedFK?

KcC vK puperior CourtI California pupreme CourtI N4 CalK4th UN4

ENVVTFK
sK bmployerJlbtained oestraining lrdersK

?Any employerI whose employee has suffered unlawful violence or a credible

threat of violence from any individualI which can reasonably be construed to be
carried out or to have been carried out at the workplaceI may seek a temporary
restraining order and an injunction on behalf of
the employee prohibiting further unlawful violence or threats of
violence by that individualK?

California Code of Civil mrocedure pection ROTKUK qhis law does not expand
the duty to provide a safe workplace Epection ROTEkFFK fncludes telephone
callsI stalkingI eJmailK aoes not include divorce cases or domestic violence
Epection ROVEbFFK

JJtashington mostW major articleI OMMTK httpWLLtinyurlKcomLwpVTVT

JJlregonian articleI NNLMVW bmployers reluctant to deal with domestic

violence problems of employeesK httpWLLtinyurlKcomLoregonUUPP

JJCorporate Alliance to bnd martner siolenceW

httpWLLcaepvKorgL

sK ptalking lrders And lther oestraining lrders ElregonFW

lregon formsW

httpWLLtinyurlKcomLformsTSTS

jarion CountyW lots of information and forms

httpWLLwwwKcoKmarionKorKusLaALvictimassistanceLptalkingL
sfK lregon lawW

NK lop SRVAKOTO ieave of absence for domestic violenceI court

appearancesK

OK lop SRVAKOVMW “oeasonable safety accommodation” for the

employeeLvictimK

n qhe crime victims’ law requires employers to grant an

eligible employee a “reasonable” leave of absence if the
employee or the employee’s minor child or dependent
needs time off to deal with issues of domestic violenceI
sexual assaultI or stalkingK qhese arrangements might
include such things as seeking medical treatmentI
obtaining counselingI relocatingI getting legal advice or
contacting law enforcement personnel
n Applies rrsidOMRMRO to employers with one or more
employees Eas of ganuary NI OMNMK

PK cor employees of the ptate of lregonI each agency has a “siolence cree
torkplace” policyK lop O4MKPMS; O4MKPON; O4MKRRR; O4MKRS

4K Can an lregon school district ban handguns for the employees of

the school district? vesK aoe vK jedford pchool aistK R4VCI OPO
lrKAppK PUI OON mKPd TUT EOMMVF

RK Can an employee quit a job because of domestic violence and still get
unemployment insurance? vesK lop SRTKNT
SK bffective NKNKNMW ElregonFW qhis law increases workplace protections
by prohibiting employment discrimination against survivors of
sexual assaultI domestic violence and stalkingK

TK lregonianI OLOMNMW “lregonDs crisis service hotlines receive more

than RMIMMM emergency and PTIMMM nonJemergency calls from
survivors of domestic violence every yearK oaphael eouse of
mortland and other community support services are stretched
beyond capacityI leaving OMIMMM requests for shelter services
unmetK” httpWLLtinyurlKcomLoregonVVVTTT

UK Can a woman be evicted because she is a victim of domestic violenceI

sexual assault or stalking in lregon? koK lop VMK44V

VK A victim of domestic violence in lregon now has protection against

retaliation from her employer when she files a restraining order or
reports her abuser’s conduct to the policeK lop SRMAKOPM

NMK dreat set of links for lregonK