Workers Compensation

Who's to Blame for Violence at the Workplace?

By Sachi Barreiro, Attorney, University of San Francisco School of Law
Learn what to do if you were the victim of workplace violence.

Every now and then, stories about workplace violence burst from the headlines. A disgruntled employee returns to his workplace and opens fire. Two coworkers get into a heated fight that turns violent. A worker is sexually assaulted by another employee while working late. An employee attacks a customer while performing maintenance in the customer’s home.

Headlines like these give any worker cause for worry about what dangers might be lurking at the office or work site. But who is responsible for the consequences of workplace violence? Do employers have a duty to keep their employees safe?

Employer’s Duty to Prevent Workplace Violence

While there’s no federal law on workplace violence prevention specifically, the federal Occupational Safety and Health Act (OSH Act) requires employers to provide a workplace that is free from dangerous conditions or hazards that are likely to cause serious injury or death. This general duty to prevent dangerous working conditions is interpreted to include threats of workplace violence.

The Occupational Safety and Health Administration (OSHA), the agency that enforces federal health and safety laws, has the authority to issue fines when employers fail to protect employees from physical violence. However, the OSH Act does not give employees the right to sue their employers for injuries sustained by workplace violence.

Workers’ Compensation

Although employers have a duty to protect their employees from workplace violence, employees typically cannot sue their employers for negligence or other civil actions in court. Instead, they must go through workers’ compensation.

While there are many benefits available through workers’ comp, payments are generally more limited than what a plaintiff can recover in court. To start, payments for wage loss and permanent disabilities are capped by law. And, workers’ comp does not provide compensation for “pain and suffering”—the mental anguish, physical discomfort, and decrease in quality of life caused by the injuries. In many civil lawsuits, pain and suffering makes up the majority of a jury award. (However, a worker can still receive compensation for mental anguish through workers’ comp if the worker develops a psychiatric condition, such as post-traumatic stress disorder (PTSD), as a result of the violent incident.)

State laws differ on whether there are any exceptions that would allow an employee to sue an employer in court for injuries caused by workplace violence. In many states, as long as the incident happened while the employee was on-duty or performing a work-related task, it is subject to workers’ comp. However, in some states, including California, the violent incident must also arise of out the employment in order to be subject to workers’ comp. For example, if the dispute was over a personal matter between two coworkers, the victim may be able to file a lawsuit against the employer in court.

The employee can always file a lawsuit against the third party who committed the violence. Unfortunately, though, this is not always a viable option: Coworkers or third parties are often “judgment proof,” meaning that they have no assets or income to pay off a judgment even if the employee were to win his or her case.

Civil Lawsuits

Employers have a general duty to act with reasonable care to prevent violence at the workplace. This means that when hiring, employing, and terminating workers, they must take care to minimize the risk of workplace violence. If employers fail to meet this minimal standard, they can be sued in court for a tort called “negligence.” To bring a successful negligence claim, the plaintiff must show that the employer knew—or should have known—of the threat of violence and failed to take steps to prevent it.

These lawsuits are generally brought by members of the public who were harmed by the workplace violence. For example, suppose an employee of a cable TV provider assaults a customer during a visit to her home. If it turns out that the employee had a history of similar criminal acts, and the employer knew about this or failed to conduct any sort of pre-employment screening, the customer may be able to sue the employer.

As described above, employees typically cannot file lawsuits for negligence against their employers. However, most states have exceptions for intentional acts by the employer. For example, if the owner of the company committed the violence, the employee could typically sue in court. In some states, the employee could also sue if the company acted recklessly in allowing the violence to occur—for example, by continuing to employ someone who has been violent towards others.

Employment Discrimination & Harassment

Special rules apply when an employee is subject to violent behavior as a result of discrimination or harassment based on a characteristic protected by federal or state law, such as race, gender, religion, age, or disability. Under Title VII of the Civil Rights Act, and similar state laws, employers must take certain steps to protect employees from being harassed based on these protected characteristics. Employees may sue their employers in court for violations of federal and state antidiscrimination laws. For more information, see our article on harassment during employment.

What to Do if You Suspect Workplace Violence

If you’re subjected to violent behavior at the workplace, or you believe that a coworker or third party poses a threat of violence, you should notify your employer right away. Whenever possible, put your notice in writing or follow up your conversation with your employer in writing. That way, you’ll have a record that your employer was aware of the danger.

You should also contact a lawyer who is experienced in employment law and worker’s compensation law. An attorney can help you determine whether the case should be filed in court or through the workers’ comp system. In certain circumstances, you may also have the right to take time off work while you are recovering from your injuries. For help finding an attorney, see our lawyer directory.

Questions for Your Attorney

  • My husband was shot by a coworker while at work. Is his employer responsible for his medical bills?
  • What's the difference between a worker's compensation case and a regular lawsuit?
  • My employer offered me a cash settlement for injuries I suffered after being assaulted by a coworker. Should I take the settlement?
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