How to Reduce the Risk of Workplace Violence

Each year, nearly 1.5 million workers are injured by violence in the workplace according to the National Crime Victimization Survey. We see it too often on television news. This article does not presume to offer an explanation for the prevalence of workplace violence or recommend remedial measures. It is only meant to contribute to an awareness of the problem and to offer some suggestions for what you can do on an individual basis to work safely.

Awareness of one’s surroundings is the single most important aspect of workplace safety. Has a co-worker been expressing her fear of an abusive and violent spouse? Do you see someone in the building who does not belong like a disgruntled former employee? Awareness of the potential for harmful situations may afford crucial time for intervention before violence occurs.

Act on your awareness. I do not suggest you confront a potentially violent individual. You may unwisely expose yourself to harm and escalate a situation. But picking up a phone and dialing 9-1-1 is action. Expressing your concerns to management about adequate security is action.

Prepare for a potential situation. In crises, people who have a plan of action are much less likely to panic. Many schools and larger workplaces have “lockdown” drills to familiarize staff as to what to do in an emergency situation. Even if your employer doesn’t have a plan, you can create a simple one on a 3×5 card, keep it in your desk drawer, and look at it from time to time. Steps to include are calling 9-1-1, identifying the closest exit or a secure hiding place, and locking doors or creating other barriers to deny an intruder entry into your workspace.

If you are in management, there are additional steps you may take to reduce the potential of violence among employees. Speak frequently with staff and make sure everyone feels they are being heard. Be alert for employees who are loners, complain often of unfair treatment and show signs of irrational behavior. Look for employees who show signs of substance abuse. Every workplace, no matter how small, should have a written workplace violence prevention policy and ensure that employees adhere to it.

In the National Crime Victimization Survey I mentioned at the beginning of this article, five of the top fifteen at-risk job categories for workplace violence are teaching positions, including elementary school teachers (No. 14). (Junior high school teachers are highest at No. 10). While it is difficult to conceive of a nurturing classroom environment having a high risk for violence, one need only recall the tragedy at Sandy Hook Elementary School in Connecticut. Every mad act of violence cannot be prevented, but perhaps with greater awareness and preparation, more of them can.

Straight Talk on Disability Benefits

Most people who have disability benefits receive them through their employers. Generally, short term disability (STD) covers the first 26 weeks of absence from work for a disabling condition. Long term disability (LTD) may be available until age 65 for disabilities lasting longer than 26 weeks as long as the person meets the criteria for being totally disabled.

Since the terms of both STD and LTD plans may vary widely, the first essential step for anyone applying for benefits is to obtain a copy of the summary plan description (SPD). The SPD is a booklet or online document the employer must provide outlining the plan details in plain English. If you do not have a copy of the SPD, ask your human resources representative.

The second essential step when applying for disability benefits is to meet with your doctor to review the application. The doctor will be required to fill out an Attending Physician Statement. Be sure your doctor understands it is not enough to say you have a disabling condition. The doctor must be able to explain how the condition prevents you from performing the essential functions of your job.

For example, it is not enough to say someone is disabled because of low back pain. The doctor must describe how the low back pain prevents the employee from sitting at a desk long enough to work effectively, lifting objects the job demands, traveling, or other essential job functions. I recommend submitting to the insurance company with the application all the medical records supporting your application that you can gather along with a supporting letter from one or more treating physicians.

The transition from STD to LTD is a critical time to review your legal rights. Too often, employers are only too happy to encourage disabled employees to apply for LTD and then terminate their employment when they do not return to work. However, the insurance company, not the employer, determines whether LTD benefits will be granted. Employees may find themselves unemployed and without disability benefits because they failed to explore options for returning to work and the disability insurer has determined they are not disabled. The employer has an obligation to provide reasonable accommodations. Do not apply for LTD until you have explored options for returning to work or your disability is severe enough that your doctors will unwaveringly agree you can no longer perform your job.

Drug Testing Programs Require Careful Planning

Pennsylvania unemployment compensation law considers an employee’s refusal to submit to a drug test or a failed test grounds for denial of benefits without the employer having the additional burden of proving “willful misconduct.” However, to avail itself of the relaxed standard, the employer must adopt a drug testing policy that is not in violation of law or a collective bargaining agreement. The employer must communicate the policy to its employees and comply with the policy.

Simply putting a paragraph in a handbook that advises employees they may be asked to submit to a drug test is not enough. Careful consideration must be given to when a drug test may be appropriate. Upon hire? After an accident? Upon reasonable suspicion that a person may be under the influence of a controlled substance? Should the employer implement random testing for all employees in safety sensitive positions? These are all important considerations that should be resolved before a policy is drafted. Drug testing policies should be tailored to the needs of the employer. An insurance agency with mostly clerical staff, for example, will not require as onerous a policy as a trucking company.

Once an employer decides when to test, it must also consider the manner and method for testing. Many employers contract with local clinics to conduct drug testing and often forget to inform the employees in the policy what to expect when they get there. There are a variety of tests and collection methods. The U.S. Department of Health and Human Services and the U.S. Department of Transportation both have manuals on drug testing that provide useful information to consider when drafting a policy and can be found on the agency websites. An employer need not adopt a policy that meets stringent HHS or DOT guidelines. However, a policy should inform employees under what circumstances they may be tested, what will happen when they are tested, and the consequences of a refusal to test or a failed test. Consultation with our office and medical professionals experienced in drug testing and sample collection prior to implementation of a drug testing program will enable an employee drug testing program to work effectively and withstand legal challenges.

Need assistance in an employment matter? Call our Yardley, PA office at (215) 493-8287 or contact us by email at scott@fegleylaw.com. We Give You Peace Of Mind.

 

Employer Not Responsible For Employee Data Safekeeping

You start your job and give your employer all your personal information: your home address, social security number, perhaps even confidential medical and financial data. Did you know your employer has no duty to keep your confidential information safe from hackers? In a recent 2 – 1 vote, a three-judge panel of the Pennsylvania Superior Court ruled that employers cannot be held responsible for a data breach of employee information even if the employer was not utilizing current best practices to prevent a breach.

In the case of Dittman v. University of Pittsburgh Medical Center, decided January 12, 2017, the names, addresses, birthdates, salaries, social security numbers and other valuable data of 62,000 employees were stolen from University computers. The breach resulted in as many as 788 employees falling victim to tax fraud and identity theft. Yet, the court’s majority concluded that since data breaches are widespread and cannot be prevented entirely, it should not create a rule that would force employers to spend significant sums on technology when data breaches remain an unavoidable hazard.

 

The court did not evaluate the technology UPMC had in place, its cost, or the cost of more expensive measures that might have prevented the breach. In a stinging dissent, Judge Musmanno chided the majority for failing to even allow the plaintiffs the opportunity to demonstrate the University was aware of the threat of cyberattacks and did not act reasonably within budgetary constraints to safeguard employee information.  The Dittman decision has far-reaching implications.  To the delight of hackers, it may encourage some employers to spend less on data security, or at least on the security of data that doesn’t affect the employer’s bottom line if it is compromised. Look for this one to go up to the Pennsylvania Supreme Court. In the meantime, employees might want to spend a little themselves on LifeLock or similar services to protect their confidential information.

A NON-COMPETE WITHOUT PAY? NONSENSE.

It is well established in Pennsylvania law that a non-competition agreement signed at the beginning of employment is enforceable if it is reasonable in its duration and scope. Yet, employers often attempt to compel employees to sign non-competition agreements after the employment has begun. Perhaps the employer overlooked the document during the hiring process. More likely, the attempt comes much later when the employer suddenly realizes the potential impact to its business if a key employee should leave.

Employers in Pennsylvania are required to offer an employee more than just continued employment to enforce a non-competition agreement signed after employment has begun. In Socko v. Mid Atlantic Systems of CPA, Inc., decided by the Pennsylvania Supreme Court in November 2015, the defendant employer foolishly decided the non-competition agreement its salesman, David Socko, signed in 2009 when he was hired wasn’t strong enough. In 2010, it asked him to sign a far more restrictive agreement. The agreement specifically noted that it superseded all prior agreements. Mid Atlantic did not extend Mr. Socko any additional benefit for signing the agreement, not a raise, not a bonus, not an extra week of vacation. When Mr. Socko left to work for a competitor in 2012, Mid Atlantic attempted to enforce the 2010 agreement.

The Supreme Court held the 2010 agreement was unenforceable because Mid Atlantic did not provide Mr. Socko “consideration,” a valuable benefit, in exchange for signing the agreement. Because non-competition agreements have historically been looked upon with disfavor in Pennsylvania jurisprudence, the Supreme Court ruled that an employee is entitled to challenge a non-competition agreement for a lack of consideration even if the agreement contains language which states the employee intended to be legally bound by the agreement. Moreover, the language in the 2010 agreement that superseded all prior agreements prevented the employer from relying upon the less restrictive agreement signed at the beginning of the employment in 2009.

What if an employee refuses to sign a non-competition agreement even if the employer offers a valuable benefit in exchange? Unfortunately, in the employment-at -will environment, a refusal to sign a non-competition agreement properly supported by consideration is not legally protected. At least Pennsylvania employees are entitled to be compensated for agreeing to restrictions. In contrast, the New Jersey Supreme Court has held that continued employment itself is sufficient consideration for a non-competition agreement presented after hiring.

 

If you are presented with a non-competition agreement and have questions, call Scott Fegley at the Fegley Law Firm in Yardley, PA, (215) 493-8287 or email him at scott@fegleylaw.com. Mr. Fegley will help you make an informed decision about whether to sign a document that may restrict your ability to work for another employer.