PREVENTING AND MANAGING WORKPLACE VIOLENCE WMMIC MEET july 2016 Jennifer S. Walther Mawicke & Goisman, S.C. 1509 N. Prospect Ave Milwaukee, WI 53202 (414) 224-0600 jwalther@dmgr.com © Mawicke & Goisman, S.C. 2016

WORKPLACE VIOLENCE How does this…. Become this?

Strategies for Prevention Dealing with the Aftermath WORKPLACE VIOLENCE The Problem Liability Strategies for Prevention Dealing with the Aftermath

THE PROBLEM Prevalence in Public Sector Rate of workplace violence more than 3x private sector All types = 18 v 5.2/1000 Simple assault = 18.9 v 4.6/1000 Serious violence = 3.4 v 1.6/1000 41% of all nonfatal violence, only 16% of workforce 96% against state, county, local workers (81% of workforce) 56% against law enforcement and security 20% of victims of workplace homicide Less likely to involve weapon (12% v 20%)

THE PROBLEM Prevalence in Public Sector OCCUPATION RATE/1000 % OF ALL GOV EMPLOYEES Law enforcement/Security 140.3 8.9 Mental Health 87.1 2.0 Retail Sales 36.3 0.4 Medical 22.6 6.5 Transportation 21.8 3.1 Teaching 9.4 33.5 Other 5.8 45.6

THE PROBLEM Contributing Factors in Public Sector Working directly with the public Having a mobile workplace (in the field) Working with unstable or violent persons (incarcerated, mental health, social services populations) Working in high crime areas Working in community-based settings

THE PROBLEM Top Motivations for Violence Personality conflict (51%) Emotional problems/mental illness Family/marital/personal relationship problems Terminations Work-related stress Drug/alcohol use

THE PROBLEM Categories of Violence Type I – strangers to the workplace Type II – customers or clients of the business Type III – employees against coworkers Type IV – non-employee with a personal or domestic relationship with a worker

THE PROBLEM Types of Incidents Verbal threats Pushing/shoving Fistfight Stalking Burglary/robbery Suicide Bomb threat Rape/sexual assault Shooting Stabbing Fatal assault

LIABILITY Safe Workplace/Premises Wis. Stat. § 101.055 – Public employee safety and health Gives public employees same protections as OSHA OSHA general duty clause – recognized hazards may include violence Wis. Stat. § 101.11 Employer has duty to furnish safe employment and safe place of employment

LIABILITY Worker’s Compensation Exclusive remedy Employee against employer For accidents Not subject to exclusivity: Actions against co-employees for assault Intentional acts, i.e. harassment Third party claims Increased penalty for safety violation

LIABILITY Negligence Wis. Stat. §893.80 – immunity for discretionary acts Hiring, supervision, retention, considered discretionary acts Referral (failure to tell truth or disclose relevant facts) - Not decided whether discretionary Reference immunity law – §895.487 Open records request for personnel files – prior notice required §19.35

LIABILITY Constitutional Issues Constitutional Tort - §1983 Government policy, custom or practice Caused deprivation of federal or constitutional right Public employee is representative of public employer when engaged in violent or unlawful conduct Did official turn a blind eye to risk

STRATEGIES FOR PREVENTION Identify Assess Policies and Programs Discipline

STRATEGIES FOR PREVENTION Identify Hiring Application Interview Background searches Job Tests Medical Personality Drug & Alcohol

STRATEGIES FOR PREVENTION Assess Threat Assessment Team Assess workplace vulnerability Develop employee training Assess credibility of threats Develop plan to respond to threats Fitness for Duty exams Component of threat assessment

STRATEGIES FOR PREVENTION Assess Site Security Assessment Physical security features Security personnel Security policies

STRATEGIES FOR PREVENTION Policies and Programs Violence Weapons Wisconsin’s concealed carry law Workplace searches Telephone, email, and computer usage Drug and alcohol testing Domestic violence

STRATEGIES FOR PREVENTION Policies and Programs Employee Training Violence prevention policy Risk factors Recognition of warning signs Including domestic violence Reporting Emergency procedures

STRATEGIES FOR PREVENTION Policies and Programs EAPs Conflict and Alternative Dispute Resolution Partner with law enforcement The role of Unions

STRATEGIES FOR PREVENTION Discipline Constitutional Protections Due Process Property (continued employment) Liberty (freedom from stigma) First Amendment Speech Association

STRATEGIES FOR PREVENTION Discipline Off Duty Conduct Arrest and Conviction Record law – §111.335 Substantially related to circumstances of job Independent investigation Nexus Test – connection between off-duty conduct and its impact on employer and workplace Position of public trust Teachers Public safety employees

STRATEGIES FOR PREVENTION Discipline Terminations Consider risk before discussion Involve security/police if necessary Pick place/time to reduce employee contact Have 2 people present Follow checklist Treat employee with dignity and respect Send employee’s belongings later Cut off access to computers/building

DEALING WITH THE AFTERMATH Prepare Plan in Advance Identify crisis communication team Designate spokesperson Establish notification system Designate assembly point Establish media policies and PR plan Prepare holding statement Create a shadow website

DEALING WITH THE AFTERMATH Implement Plan Account for employees Determine the message Tell it all, tell it fast, tell the truth Communicate the message Monitor communications Retain or refer employees to counselors Restore relationships After action report

QUESTIONS? Jennifer S. Walther Mawicke & Goisman, S.C. 1509 N. Prospect Avenue Milwaukee, Wisconsin 53202 (414) 224-0600 jwalther@dmgr.com