Dealing with a disgruntled employee

By Traci R. Gentilozzi
The Daily Record Newswire

Employers are taking a long, hard look at how violence in the workplace is addressed in light of the Aug. 26 shooting in Roanoke, Virginia, where two journalists were killed by a disgruntled ex-employee during a live broadcast.

And the review of workplace policies does not just include dealing with current workers or discharged ones. It also includes how not to hire workers with violent tendencies in the first place.

The U.S. Department of Labor estimates that about 85 percent of workplace violence is preceded by some type of warning, said Lansing lawyer David J. Houston. According to the DOL, early signs can include the employee becoming repeatedly confrontational, uncooperative, discourteous and verbally abusive.

One thing is certain, Houston said: employers must have a written policy addressing workplace violence. They must also have a well-trained human resources staff that can spot the indicators for violence.

"In light of the Virginia shooting, the scary thing is, how far does an employer have to go to monitor things?" Houston asked.

Kalamazoo attorney Kevin M. McCarthy said it's the calm, cool and collected discharged employee who worries him the most.

"I have talked with psychologists and law enforcement and, generally, if someone is making threats, and yelling and jumping up and down, they are unlikely to act out on those threats," McCarthy said. "I take some comfort when an employee is actually screaming. It's the person who has a 'matter of fact' way about them that employers need to be concerned about."

When a person is exhibiting violent behavior during a firing or has shown violent tendencies in the past, security should be in place until things settle down, according to Detroit practitioner Patricia M. Nemeth.

"Immediately get that person out of the workplace," Nemeth said. "As an attorney, I'd rather see an employer defending a lawsuit later on, rather than having something tragic happen in the workplace."

Hiring time

"The best way to deal with violence issues is to not bring them into the workplace in the first place," McCarthy said. "My number one piece of advice for employers is to be proactive in the hiring process."

To avoid hiring violent workers, employers must conduct meaningful background checks, including criminal ones, said McCarthy, of Warner Norcross & Judd LLP.

"The problem is that many employers, for the last 20 years or so, have been trained to only give out name, rank and serial number on their former employees," McCarthy said. "I have always thought this was a mistake."

Novi lawyer Richard A. Hooker, of Varnum LLP, agreed that thorough background checks on potential hires are necessary.

"It's my understanding the news station [in Roanoke] had information that this guy was a challenge at his previous job and had some anger issues," Hooker said. "The station apparently hired someone with a 'past.' I'm not blaming the station for what happened, but it's a luxury to even have that kind of information, especially when it's difficult to get people to say anything negative about former employees. Maybe what happened in Roanoke can serve as a lesson to other employers."

What it often boils down to is bad hiring decisions, Hooker remarked. "Employers should do themselves a big favor and avoid hiring people who are 'life's victims' - those who always blame someone else for the bad things that happen to them."

Spotting the tendencies

When an employee shows any proclivity for violence, the employer must respond to it immediately, said Grand Rapids attorney Kelly A. Petrocelli.

"Employers need to communicate with their employees and make sure they understand that there is a complaint procedure to follow," said Petrocelli, of Rhoades McKee PC. "The employer needs to make it clear that it will not tolerate any threats, and so forth."

Managers need to have an open-door policy, where employees feel comfortable and know they can come and talk about their concerns, Petrocelli said. And when an employer does get a complaint, it must be investigated right away, she said. "Do not put it on the backburner."

Hooker agreed, saying that signals and complaints should never be ignored. "Anytime there is an obvious sign or a complaint, the employer has to do something about it. And the signs and what should be done will vary from situation to situation."

In addition, supervisors and HR staff need to be prepared and properly trained to handle an employee who becomes violent in the workplace, Petrocelli said. "Employers can often see little cues, like the person is unwilling to follow directions or is becoming confrontational. There is no one formula to follow, though, which can make it difficult at times."

Meanwhile, a worker who is believed to possibly have a psychological problem should be referred to an employee assistance program, if one is available, McCarthy pointed out. "It could be a lifesaver," he said.

Disciplinary action may sometimes be necessary, McCarthy noted, not because the worker appears to be psychologically ill, but because of his or her behavior. "Employers can discipline for misconduct, but not for a medical condition."

When violence is shown

According to Nemeth, of Nemeth Law PC, there are four questions an employer should ask about a fired employee who has shown violent tendencies:

- Should we be looking for extra security?

- Should we be contacting authorities and putting them on notice?

- Should we be monitoring this person for a few weeks or even months?

- What's going on with the person's posts on social media?

McCarthy pointed out it is virtually impossible for an employer to protect employees against a person acting out years later, like in the Roanoke situation.

However, "where an employee has been terminated and there are concerns, if there is a security force in place, notify them that the person is not allowed on the property anymore," McCarthy said. "If there isn't security available and the employer is really concerned, the employer may have to hire security personnel on site."

Employers can also give written notices to discharged employees, McCarthy explained, telling the fired workers they cannot come onto the company's property or approach any current employees.

"Before someone can be arrested for trespassing, they must be notified they are not allowed on the property, so the written notice does that," he said. "It sends a message that they should stay away."

Another option, McCarthy said, is to notify local law enforcement. "Tell them, 'Yesterday when we terminated this person, he threatened to come back and cause trouble.'"

Lives matter

Handling disgruntled workers can be difficult, especially in circumstances like the Roanoke case, where the employer thought it had completely broken ties with the fired employee, Petrocelli explained.

"Unfortunately, I think that we're probably heading more in the direction of people acting out like that," she said. "Employers are struggling with a lot of things when trying to keep their employees safe, especially making sure they are not intruding on their employees' rights."

Houston, of Dickinson Wright PLLC, pointed out that employers cannot follow fired workers around and monitor them forever. "There's only so much an employer can do," he said.

Nemeth agreed, noting the Roanoke incident happened two years after the worker was fired. "So, realistically, there has to be a reasonable end point."

Nemeth said that several clients contacted her after the Roanoke tragedy because they were in the midst of conducting investigations into potentially disgruntled employees.

"They said they had witnesses who were now afraid of their names being used in the investigation," she explained. "So Roanoke is now going to be in the forefront of their minds. And when employers are trying to fire someone, they need to have potential witnesses to support the discharge.

"It becomes a dilemma for employers," Nemeth said. "But I would rather have them err on the side of saving lives than worrying about any liability."

Published: Fri, Oct 16, 2015