You have probably read frightening headlines stating some variation of the following, "On-Job Incidents in '97 Took 32 Lives in State," or "A Day of Horror; Rise in Workplace Violence Poses a Threat for Employers Nationwide," which goes on to state that "more than one million violent crimes occur each year in the workplace."
With the recent increased attention to the issue of workplace violence, employers are fully aware, due to repeated warnings in many legal and public venues, that they should implement and enforce proper policies and training to provide a safe work environment and address potentially threatening situations. Employers are increasingly relying on security guards and security personnel to assist them in preventing workplace violence, controlling theft or assisting with employee investigations, discipline or terminations. In fact, private security firms have boosted their staff in recent years partly because employers can no longer rely on local law enforcement agencies that have fewer of their own staff due to budget constraints.
The enhanced role of security officers and guards in the employment setting can be useful in dealing with difficult workplace scenarios, providing employers with a perhaps untapped resource of workers trained to deal with conflict and dispute. However, an employer must also ensure that these individuals are fully trained on relevant issues of law, including harassment, discrimination and privacy, that can surface in the workplace -- just as the employer trains any other managers, human resource professionals and supervisors.
Risks Involved with Security Personnel
Employers should ensure that when they provide training to security staff or other employees on workplace violence, a portion of the program addresses what security should not do when faced with stressful situations involving employee misconduct or discipline. Appropriate conduct will benefit the employer, both in terms of resolving the immediate situation and preventing later lawsuits by the employee at issue. Inappropriate conduct, on the other hand, can subject the employer to possible liability.
It is not unheard of for employers to end up litigating assault, invasion of privacy or trespass claims, or paying million dollar settlement awards based on the wayward antics of security personnel or firms supposedly "helping" an employer handle a workplace issue. Actions such as tailing accused harassers and trespassing onto private property to investigate claims against employees have cost some employers substantial time, money and loss of reputation. However, far less egregious conduct can also subject an employer to subsequent claims. This point is illustrated in Resley v. Ritz-Carlton Hotel Co., 989 F. Supp. 1442 (M.D. Fla. 1997).
In Resley, a former employee raised a state law claim against her former employer for false imprisonment based on the circumstances surrounding her termination. The employee, while out of work on a medical leave of absence, visited the Ritz-Carlton cafeteria, where she consumed a bowl of soup for which she did not pay in violation of the hotel's policy. The hotel security manager who witnessed this situation asked the employee to follow him and led her into a small room in the security office. This manager had previously been warned by the employee's direct supervisor to "watch out" because the employee was "crazy." Id. at 1448.
Once inside the office, the security manager locked the door and "hollered" at the employee, accusing her of stealing from the hotel in relation to her bowl of soup. Id. at 1450. The employee could not leave because she could not unlock the office door. Based on these facts, the court denied the employer's motion for summary judgment on the false imprisonment claim, finding that a genuine issue of fact existed regarding whether the security guard locked the employee in the office against her will. Id. at 1451.
Not only did the security guard's conduct in locking the door set-up the situation for a classic claim of false imprisonment, but his unreasonable reaction to the employee's eating a bowl of soup (when evidence showed others had done the same with no repercussions), especially based on the implicit suggestion that he did so because he heard the employee "was crazy," was simply unreasonable. Indeed, his "overreaction" gave the court further reason to deny summary judgment: "Plaintiff was detained over a bowl of soup; a reasonable finder of fact could infer that Plaintiff was restrained against her will, and that this restraint was unreasonable and unwarranted under the circumstances." 989 F. Supp. at 1450.
The facts involved in Resley raise another issue: potential claims related to mental disability. Mental disability is an issue not infrequently raised in cases involving workplace misconduct and violence. Security personnel should be aware, as part of their training, that they can take the same action against mentally disabled employees who pose a threat of violence as nondisabled employees. In other words, a mental disability does not protect employees from the consequences of their threatening behavior. However, they cannot take action against an employee who has (or appears to have) a mental disability based simply on their fear that the employee may engage in workplace violence. To do so is to place the employer at risk of ADA liability.
To the extent that tort, discrimination and other claims arise based on the conduct of security staff, employers should know that the usual relevant legal distinction between security officers employed in-house and those retained from outside private security firms as independent contractors may not apply in a lawsuit premised on injuries resulting from an alleged unsafe working environment. Employers can generally avoid liability for the acts of independent contractors. Unlike employees, such individuals are not agents of the employer. However, since the duty of employers to provide a safe workplace is non-delegable, an employer will remain responsible for a breach of that duty even if the breach results from the actions of security guards hired on a contract basis.
Other (Safe) Uses for Security Personnel
There are many ways an employer can effectively use security staff:
- Partnering the security department with an employee assistance program. By this two-fold approach, employees facing domestic abuse, stalking or harassment receive both the emotional support and advocacy resources they need on a long-term basis and the safety and security services they need short-term.
- Enlisting the help of security in the factual investigation of harassment or discrimination complaints and complaints of wrongdoing. Security staff, attuned to the importance of observation and surveillance, can marshal information and documents to aid in the employer's defense that may serve as evidence in a lawsuit. For example, security might help access or review e-mail communications between an alleged harasser and victim, telephone records, visitor sign-in logs, time cards and travel receipts. (Remember, the security employee may end up being called as a witness, and issues such as that person's credibility and demeanor are important).
- Having security staff be a part of the employer's prompt and effective response to complaints of harassment and discrimination. In response to complaints of harassment, security staff can escort the complainant to and from the building to ensure that he or she is aware that the employer views the complaint as serious. Similarly, security can patrol specific work locations where harassment has been reported to ensure that it does not recur and address it if it continues. Skilled security personnel can also arrange for around-the-clock surveillance, alarm systems and other off-site precautions where there may appear to be a substantial security threat.
Also, security personnel can be a substantial and helpful resource in addressing myriad workplace issues, but only if the staff handles those issues appropriately, professionally and consistent with the employer's own policies. At the same time, an employer's use of ill-trained or overzealous security workers to respond to violent or difficult situations can backfire, leaving the employer with the original problem as well as an ensuing lawsuit.