TWELVE POINT ACTION PLAN FOR HANDLING VIOLENCE IN THE WORKPLACE 1. Adopt and publicize a zero-tolerance policy regarding threats, harassment, and violence in the workplace. 2. Update/review employment application as well as pre-employment background checks and interviewing procedures to identify signs of potential problem applicants. Conduct background investigation on all job applicants. 3. Prepare and utilize release forms for personnel records from previous employers, course transcripts from educational institutions, certification records from training and professional organizations, credit reports from consumer credit reporting agencies and criminal conviction records from law enforcement agencies, subject to applicable federal, state and local laws. 4. Update personnel policies and employee handbook to include safety policies dealing with violence in the workplace. Include rules to limit access to work areas, especially during evening and weekend shifts. (Note: Insure compliance with state concealed weapons laws) 5. Review with your temporary employee provider the procedures they utilize to screen their temporary employees for potential workplace violence problems. 6. Conduct periodic security audits and risk assessments of each facility. Provide adequate security including access control in reception areas, parking areas, common areas, stairwells, cafeterias and lounges. 7. Prepare a comprehensive crisis management plan for each facility which includes a workplace prevention program. Prepare and distribute contact list of all local emergency agencies. 8. Select and train management officials in conflict resolution and nonviolent techniques for handling hostage, hijacking, crisis incidents and counseling situations. Atlanta Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington DC www.laborlawyers.com
9. As part of the company s overall management safety and health training, instruct all managers and supervisors in how to identify and deal with early warning signs and potential safety problems associated with workplace violence. 10. Identify and publicize Employee Assistance Programs, employee support services and health care resources available to employees and their families. 11. Institute policies to investigate all threats and complaints of harassment and violence immediately. Designate company official(s) and / or office to handle all threats and complaints in a confidential manner. 12. Review and publicize the company-wide procedures as well as the company management officials responsible for handling employees problems, complaints and concerns involving threats, harassment and violence. Edwin G. Foulke, Jr. Fisher & Phillips LLP 1075 Peachtree Street NE, Suite 3500 Atlanta, GA 30309 efoulke@laborlawyers.com Direct: 404.240.4273 Atlanta Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington DC www.laborlawyers.com Copyright 2011 All Rights Reserved
CATASTROPHIC WORKPLACE ACCIDENTS: HOW TO MINIMIZE THE RISKS AND MITIGATE THE HARM January 24, 2013 Presented by: Edwin G. Foulke, Jr. Direct: 404.240.4273 efoulke@laborlawyers.com 1628480.1 1
The potential for catastrophic accidents exist for all employers even with the best of safety and health processes! Falls Fires/explosions Confined spaces Caught in machines Contractors Motor vehicle crashes Workplace violence Every catastrophic personal injury loss is different, but the management principles are similar. PRINCIPLES OF CRITICAL INCIDENT RESPONSE Do no [more] harm priority at all times is to assure scene safety Prompt, appropriate care for the injured Preserve respect & dignity for the injured, all of the involved, the family, all others Fix the problem, not the blame Restore normal operations Prevent recurrence 1628480.1 2
WHAT IS A CATASTROPHE? Characteristics may include: employee and public fatalities or mass injuries high visibility challenging political or governmental location multiple conflicting area of legal exposure, perhaps including criminal harm to business operations or reputation may include product or financial crisis, criminal allegations, union corporate campaigns, etc. CAN IT HAPPEN TO YOU? Almost 4,551 workplace fatalities still occurred in 2009, the lowest year on record. 25% occurred in supposedly low risk industries (retail, hospitality, professional financial sections) Workplace vehicular accidents often involved the public WHAT TO MANAGE? Affected employees Business disruption Emergency response Emergency responders Investigations Law enforcement Media Insurer Defense counsel Plaintiff s counsel Customers & vendors Workers compensation OSHA, MSHA, CSB, Etc. Civil litigation 1628480.1 3
PRE INCIDENT PREPARATION Why Prepare? Catastrophe a momentous tragic event ranging from extreme misfortune to utter overthrow and ruin. ~ Merriam Webster Expect the best, prepare for the worst, capitalize on what comes. ~ Zig Ziglar Chance favors the prepared mind. ~ Louis Pasteur Chaos and order are not enemies, only opposites. ~ Richard Garriott PRE INCIDENT PREPARATION Why Prepare? Boy Scouting executive, Lloyd Roitstein, commenting after the June 2008 tornado hit the Little Sioux Scout Camp, killing four: They lived up to the Boy Scout Motto Be Prepared. They knew what to do, they knew where to go, and they prepared well. PRE INCIDENT PREPARATION Development of emergency management plan to include: 1. Crisis management action procedure with incident command system 2. Regulatory response procedure 3. Media coordination procedure 4. Pre accident notification plan 5. Accident/incident recovery plan 1628480.1 4
PRE INCIDENT PREPARATION Development of emergency management plan to include (cont d) : 6. Employee assistance program 7. Safety compliance audits 8. Hazard assessment 9. Community Outreach 1. Handling Accident/Incident is top priority Initial response/evacuation Take control/account for all employees Isolate accident/incident area Prevent further injury or damages Provide prompt care for injured 1. Handling Accident/Incident is top priority Implement accident scene safety procedure, including evidence preservation Restore normal operations (if necessary, shut down operations) Identify accident/incident area hazards and take interim measures Prevent recurrence of accident/incident 1628480.1 5
2. Notification Of Corporate Office And Appropriate Legal Counsel Provide initial details of accident/incident and status report Request needed resources Contact OSHA counsel and obtain directions for asserting legal privilege, response to investigations, and coordination with other counsel and insurers 3. Response To Employee Concerns Assigning duties during accident/incident response Scheduling of work, leave Activate employee assistance program Address safety concerns Initial communications about investigation Union coordination 4. Response To The Needs Of Families 1628480.1 6
5. Successfully Dealing With News Media Designate Company s spokesperson Respond quickly and proactively Unified message Never say No comment Stick to minimum uncontroverted facts keep it brief Company extends condolences, is fully cooperating with investigations and is conducting its own investigation 5. Successfully Dealing With News Media Limit written communications Continue to develop and disseminate pro active message to public, customers and vendors 6. Notification of appropriate governmental agencies Fire, Police and EMT OSHA 8 hour rule MSHA one call procedure State emergency management officials EPA, DOT, etc. Notify only government agencies who are required to be notified 1628480.1 7
7. Notification of Insurance Carriers Provide initial details of accident/incident Ascertain insurance carrier s response Ask for counsel Preparation for on site investigation by insurance carrier personnel and experts Coordinate workers compensation, GL, and other counsel Cooperate with but manage non attorney investigators 8. Handling Requests From Third Parties Equipment manufacturers Contractors, property owners Attorneys representing injured or deceased employees Vendors 9. Institution of Accident/Incident Investigation Internal investigation Initial investigation First report of injury filing Follow company procedures Consider legal implications Avoid snap conclusions 1628480.1 8
9. Institution of Accident/Incident Investigation External investigation Consider role of counsel Identification of witnesses Identification of evidence Avoid spoliation, obstruction of evidence Special considerations when declared a crime scene 10. Document Control Collection of documents Creation of documents Distribution of documents Privilege and other protections Document holds Electronic communications Criminal considerations 11. OSHA & OTHER GOVERNMENTAL AGENCY INVESTIGATIONS OSHA DOT MSHA DOJ ATF State Attorney General CSB State Attorney s DA DOT State/Local Fire Marshall 1628480.1 9
12. OSHA Investigation Entry of facility (warrants, subpoenas, scope) Opening Conference Attendees Parameters established Establish cooperative atmosphere Employee interviews Coordination with other investigators Document requests Photos and trade secrets 12. OSHA Investigation Walk Around Attendees and timing, union involvement, security Scope Role of other employers onsite Expansion of investigation Monitoring Note taking, filming, photos Discussions with inspectors 12. OSHA Investigation Records and document inspection Production and safety requirements Employee interviews Hourly Management Former employees Pay issues Preparation versus obstruction Handling emotional or injured employees 1628480.1 10
12. OSHA Investigation Closing conference Attendees Scope Response 12. OSHA Investigation Citations Timing and scope Posting requirement Abatement Communication to employees and public 12. OSHA Investigation Informal Conference Timing of meeting Who to attend Preparation discussion with OSHA counsel regarding presentation of company position and possible defense Possible informal settlement Effect of civil and criminal actions. 1628480.1 11
12. OSHA Investigation Appeal of Citations Timing within 15 working days of receipt File Notice of Contest Stay of abatement State plan procedures may vary 12. OSHA Investigation Appeal Process Review Commission ALJ hearing and decision Appeal of ALJ decision Full Review Commission review and decision as well as appeal process State plan procedures markedly differ and may affect strategy Continuance or stays where ancillary civil or criminal actions 13. Dealing With Surviving Family Members Meet in person Use both formal and informal communications Determine who is the best company representative Utilize several members of management and employees to provide assistance and support Provide material or monetary support 1628480.1 12
13. Dealing With Surviving Family Members Provide contact information of company officials, family liaison, benefits managers Provide benefit information Response to questions Site visit issues Treat all involved with respect and dignity BALANCING COMPETING CRIMINAL AND CIVIL ACTIONS Law enforcement CSB, ATF, etc. Fire Marshals Workers compensation Civil claims Contract claims Individual defense 12 POINT ACTION PLAN HANDLING VIOLENCE IN THE WORKPLACE 1. Adopt and publicize a zero tolerance policy regarding threats, harassment, and violence in the workplace. 2. Update/review employment application as well as pre employment background checks and interviewing procedures to identify signs of potential problem applicants. Conduct background investigation on all job applicants. 1628480.1 13
12 POINT ACTION PLAN HANDLING VIOLENCE IN THE WORKPLACE 3. Prepare and utilize release forms for personnel records from previous employers, course transcripts from educational institutions, certification records from training and professional organizations, credit reports from consumer credit reporting agencies and criminal conviction records. 4. Update personnel policies and employee handbook to include safety policies dealing with violence in the workplace. 12 POINT ACTION PLAN HANDLING VIOLENCE IN THE WORKPLACE 5. Review with your temporary employee provider the procedures they utilize to screen their temporary employees for potential workplace violence problems. 6. Conduct periodic security audits and risk assessments of each facility. Provide adequate security including access control in reception areas, parking areas, common areas, stairwells, cafeterias and lounges. 12 POINT ACTION PLAN HANDLING VIOLENCE IN THE WORKPLACE 7. Prepare a comprehensive crisis management plan for each facility which includes a workplace prevention program. Prepare and distribute contact list of all local emergency agencies. 8. Select and train management officials in conflict resolution and nonviolent techniques for handling hostage, hijacking, crisis incidents and counseling situations. 1628480.1 14
12 POINT ACTION PLAN HANDLING VIOLENCE IN THE WORKPLACE 9. As part of the company s overall management safety and health training, instruct all managers and supervisors in how to identify and deal with early warning signs and potential safety problems associated with workplace violence. 10. Identify and publicize Employee Assistance Programs, employee support services and health care resources available to employees and their families. 12 POINT ACTION PLAN HANDLING VIOLENCE IN THE WORKPLACE 11. Institute policies to investigate all threats and complaints of harassment and violence immediately. Designate company official(s) and/or office to handle all threats and complaints in a confidential manner. 12. Review and publicize the company wide procedures as well as the company management officials responsible for handling employees problems, complaints and concerns involving threats, harassment and violence. Fisher & Phillips LLP is dedicated exclusively to representing employers in the practice of employment, labor, benefits, OSHA, and immigration law and related litigation. THESE MATERIALS AND THE INFORMATION PROVIDED DURING THE PROGRAM SHOULD NOT BE CONSTRUED AS LEGAL ADVICE OR AS CRITICAL OF CURRENT OR PAST ADMINISTRATIONS. 1075 Peachtree Street NE Suite 3500 Atlanta, GA 30309 1628480.1 15