Observations About Workplace Violence, Quirky Question # 43

Quirky Question # 43:

We are a governmental agency. There recently was a highly publicized situation in which an employee at a company across town shot and killed his two supervisors and wounded several other employees before taking his own life. Yesterday, one of our more problematic employees, known to have a strained relationship with his boss, was overheard remarking with regard to the workplace violence story, “Those bastards got what they deserved.” We want to fire this guy before he acts on these kinds of thoughts here at our agency. Are there any risks?

Dorsey’s Analysis:

Like prior Blog questions, this inquiry illustrates the difficult balancing of two important, and sometimes conflicting, societal interests. On one hand, you have employers’ critical interests in maintaining a violence-free workplace. On the other, for public employers, there is a legitimate First Amendment right. The challenge confronted by governmental employers (and, ultimately, the courts) is how to ensure a safe workplace without chilling individuals’ free speech rights.

In a case from just over one year ago, the Second Circuit Court of Appeals determined that the public employer’s interest in maintaining a violence-free workplace was paramount. In Blackman vs. New York City Authority, (Civ. File No. 06-4714, June 21, 2007), the Court upheld the employer’s right to terminate an employee who stated that two supervisors who were killed in a workplace shooting “deserved what they got.” Assuming that the fired employee had engaged in protected speech (itself a close question), the court found that the employer’s need to protect its workers “plainly outweighed” the employee’s right to make the offending remark.

In the New York case, there was some history involving the same employee (Blackman) that presumably made the decision somewhat easier. On a prior occasion, Blackman had had a heated altercation with his supervisor, which ended when Blackman stated, “I am not leaving; I have a Transit Authority pass, a Union Card, and a .38 . . ..” Blackman was involved in the disciplinary process relating to these initial comments when the additional inflammatory remarks were made. Exacerbating the situation, the two supervisory employees who had been murdered, and about whom Blackman made his “deserved what they got” comment, worked for Blackman’s employer, the NY Transit Authority. Further, Blackman’s comment expressed the view that the two supervisory employees deserved to be shot because of their role in terminating the employment of the ex-employee who had murdered them. With these facts as the backdrop, the Court observed, “Even assuming that Blackman’s [deserved what they got comment] may have addressed matters of public concern, the opinions expressed by Blackman, when viewed in light of his earlier threat against [his supervisor], reveal him to be a person of violent disposition, who was potentially deeply disruptive of the workplace.” With this history, the court found the government’s interests in discharging Blackman to be “especially weighty.”

The facts presented in this Blog question are a bit closer than the Second Circuit case from which the question was drawn. In a context where the employee had not demonstrated any prior violent propensity (no previous threatening conduct or comments) and where the shooting to which the employee referred did not occur at his own place of employment, a public employer may have had a somewhat more difficult task persuading a court that the employee truly represented a risk of workplace violence warranting his dismissal.

In close cases, employers are in the unenviable position of trying to evaluate risks of workplace violence, assessing whether an idle or heated observation by an employee realistically reflects the employee’s propensity to act violently in the workplace. Of course, if the employer treats the comments dismissively, concluding that they truly were just idle observations or comments made in anger on which the employee will never act, and subsequent developments later prove the employer wrong, it is very easy to second-guess the employer’s judgment. In this context, there always is a risk of litigation from the decedent’s estate on the theory that the employer negligently supervised or negligently retained the employee who made the threat and later acted on it. Conversely, however, if the employer takes the precautionary step of discharging the employee who made the comment, despite the absence of any history of threatening comments or violent conduct, the employer risks litigation from the discharged employee who will contend that his termination constituted a disproportionate response and that the public employer was attempting to chill his freedom of expression.

The bottom line, however, is that workplace violence is an all-too-common component of the 21st century workplace. Incidents of workplace violence are reported far too frequently, such as the June 25, 2008, shooting at a Henderson, Kentucky plastics plant that left five workers dead. The Department of Labor has estimated that approximately ten percent of workplace deaths are attributable to workplace violence.

Given these grim statistics, every employer needs to give thought to how it will handle situations involving the risk of workplace violence. The good news is that courts have recognized that this is a serious problem and, for the most part, validate employers’ steps to minimize the risk of harm to employees, including the discharge of employees perceived to present a risk of harm to their co-workers and managers. This is true even when the discharge may result in some infringement of a public employee’s right to express him/herself in the workplace.