United States: Armed And Dangerous: Protecting Your Employees From Violence

Article by Yendelela Neely Anderson, Celeste Bradley, Waverly D. Crenshaw, Jr. , and Sheldon W. Snipe¹

In 2012, a long-time employee of a wholesale fabricator for supplies in Minneapolis was reprimanded for tardiness and poor performance. A week later he was terminated. During his exit interview, the employee drew a weapon, killed one of the managers present, and then went on a shooting rampage throughout the building, killing his co-workers and other by-standers. Local law enforcement later learned that the employee had no history of making threats toward co-workers or his employer, but had recently suffered from a mental illness and was estranged from most of his family.²

I. THE NATURE AND SCOPE OF WORKPLACE VIOLENCE.

A. What is workplace violence?

The Occupational Safety and Health Administration defines "workplace violence" as "violence or the threat of violence against persons or property," and includes assault, bullying, intimidation, domestic violence, stalking, sexual harassment, hate crimes, physical abuse, emotional abuse, or other conduct that jeopardizes an employee's personal safety.³ With recent developments in technology, workplace violence has expanded to include cyber-bullying, cyber-stalking, and other forms of on-line harassment.⁴ It is no longer sufficient for employers to consider workplace violence as an issue between employees. The scope of workplace violence has expanded to include violent acts committed by:

• criminals who are not connected to the workplace. According to the Department of Justice, the individuals most vulnerable to this type of violence are taxi drivers, late-night retail or gas station clerks, and other employees who have access to cash.⁵ Between 2005-2009, employees were more likely to be subjected to workplace violence by strangers;⁶
• customers, clients, patients, students, inmates, or any others for whom an organization provides services. The individuals most vulnerable to this type of violence include employees in the healthcare industry (doctors, nurses, EMTs, and hospital staff), para-military organizations, flight attendants, and teachers;⁷ and
• an employee's family members (spouse or domestic partner). Employees in all industries are vulnerable to this type of workplace violence.⁸

B. Is Workplace Violence an Ongoing Problem?

While workplace violence of this kind is on the decline,⁹ it still occurs far too often and has remained a reality and growing concern among employers, large and small. It has impacted employers throughout the country and in every industry including education, health services, wholesale trade, financial activities, transportation, warehousing, leisure, hospitality, government, retail trade, and professional business services. Almost half of the nation's largest employers (businesses that employ more than 1,000 workers) report at least one incident of workplace violence in a single year.¹⁰ The sectors more likely to be impacted by work-related homicides include retail trade (27%), government (17%), and leisure and hospitality (15%).¹¹

On average, nearly two million incidents of workplace violence occur in the United States each year.¹² It is believed that these statistics are likely under-reported as a result of a lack of workplace reporting guidelines and policies, fear of reprisal, and the belief that reporting may not result in any change.¹³ Despite this under-reporting, Liberty Mutual reports that "assaults and violent acts" are the 10^th leading cause of occupational injuries in the United States.¹⁴

Workplace homicides are the most insidious forms of workplace violence and one of the leading causes of job-related deaths in the United States. In a recent study conducted by the Bureau of Labor Statistics, an average of 551 workers per year were killed as a result of work-related homicides.¹⁵ In 2010, shootings accounted for approximately 78% of all workplace homicides and approximately 83% of those incidents occurred in the private sector and 17% occurred in the public sector.¹⁶

Additionally, workplace violence impacts genders differently. On one hand, women are more likely to be impacted by workplace violence resulting in homicides and their assailants are more likely to be relatives, nearly all of which are spouses or domestic partners.¹⁷ On the other hand, men are more likely to be impacted by workplace violence in the form of robberies.¹⁸

The Occupational Safety and Health Administration (OSHA) has identified several factors that may increase the risk of violence for certain workers. Such factors include "exchanging money with the public, working with volatile, unstable people, and working late at night or in areas with high crime rates."¹⁹ Those employees who have the highest exposure to workplace violence are law enforcement personnel, public service workers, delivery drivers, healthcare professionals, customer service agents, and those who work alone or in small groups.²⁰ Between 2005-2009, law enforcement occupations (48 per 1,000) and mental health occupations (21 per 1,000) had the highest average annual rates of workplace violence in the country.²¹

OSHA has issued voluntary guidelines and recommendations for employers in high risk industries such as for-hire drivers, late-night retail establishments, and health care and social services.²² These guidelines provide stakeholders at every level of an organization with necessary information to recognize and remediate workplace violence.

C. What is the impact of workplace violence?

Workplace violence impacts an employer's bottom-line and the continuity and overall productivity of the workforce. The economic costs associated with workplace violence are staggering. According to a recent report issued by Liberty Mutual, workplace violence in 2010 cost employers approximately $640 million dollars.²³ It affects the number of workers' compensation and medical claims filed by employees as well as the amount of leave taken to address post-incident physical and/or psychological injuries. Moreover, it also diverts company resources for post-incident activities (e.g., focusing on public image, and meetings to stabilize and increase the morale of the workforce), and contributes to a loss of sales due to work stoppage, and debilitating litigation costs.²⁴ Estimates of the cost of a single incident of workplace violence range between $250,000 to $1 million dollars.²⁵ Additionally workplace violence is projected to result in approximately 1,751,100 days of leave each year, or over $55 million dollars in lost wages annually.²⁶

The non-economic costs associated with workplace violence are equally staggering and nearly impossible to measure. These include loss of productivity, decreased morale, higher rates of turnover and loss of current and potential business due to public perception.²⁷

II. THE LEGAL LANDSCAPE

One of the leading costs associated with workplace violence is litigation expenses. In accordance with the Occupational Safety and Health Act, employers have a duty to maintain a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees."²⁸ While there is no private right of action against employers under the Act, an employer who repeatedly fails to comply with this duty may be fined up to $70,000 for each willful violation and may be subject to criminal penalties.²⁹

The lion's share of litigation involving workplace violence is in negligent hiring, retention and supervision cases.³⁰ In recognizing a claim of negligent hiring/retention, one court explained the theory of liability as follows:

"An employer may be liable to a third person for the employer's negligence in hiring or retaining a servant who is incompetent or unfit. Such negligence usually consists of hiring or retaining the employee with knowledge of his unfitness, or of failing to use reasonable care to discover it before hiring or retaining him. The theory of these decisions is that such negligence on the part of the employer is a wrong to such third person, entirely independent of the liability of the employer under the doctrine of respondeat superior...."³¹

"The employer's knowledge of past acts of impropriety, violence or disorder on the part of the employee is generally considered sufficient to forewarn the employer ... that he may eventually commit an assault."³²

While Courts have consistently held that employers are not vicariously liable for workplace violence,³³ employers may still be found liable for foreseeable acts of violence. The following is a synopsis of relevant cases:

• In Duffy v. Technicolor Entertainment Services, Inc., No. B196126, 2009 WL 204410 (Cal. App. 2 Dist., Jan. 29, 2009), the Plaintiff was assaulted at home by a co-worker. The employer knew that the co-worker had violent propensities in the workplace, failed to discipline the co-worker for previous incidents of workplace violence, and had reason to believe that the Plaintiff would suffer injury as a result of direct threats made by the co-worker. The Court upheld the jury's verdict that the employer had negligently retained and supervised the co-worker when it failed to prevent the incident from occurring.
• I Doe III v. the State of Washington, Department of Social and Health Services, Western State Hospital, No. 35130-7-II, 2008 WL 929885 (Wash. App. Div. 2, April 8, 2008), the Plaintiff was sexually harassed by a co-worker multiple times and received several death threats by that same co-worker, which she reported to her employer. The Court held that the employer could be held liable under a negligent retention and/or supervision theory because of its knowledge of the employee's propensity to sexually harass co-workers.
• In Foster v. the Loft, Inc., 26 Mass. App. Ct. 289, 526 N.E.2d 1309 (1988), a customer brought an action against an employer for negligently retaining an employee who injured a customer at a local night club. The Court held that a jury could find that the employer negligently retained the employee because it knew the employee had a criminal record and that the nature of the business presented a likelihood of violence in the workplace.
• In Geise v. the Phoenix Co. of Chicago, Inc., 246 Ill.App.3d 441, 615 N.E.2d 1179 (1993), the Plaintiff, a sales representative, repeatedly complained to management to no avail, that her supervisor had on multiple occasions, made unwanted sexual advances toward her including attempting to kiss and touch her body, offensively placing his hands on her body, and placing objects down her blouse. The Court held that these allegations were sufficient for a jury to find that the employer negligently retained the supervisor because it "knew or should have known" that he was "unfit for the job as to create a danger to third parties."
• In Hoke v. the May Department Stores Company, 133 Or. App. 410, 891 P.2d 686 (1995), the Plaintiff, a customer of the Meier and Frank department store, was forced to submit to sexual intercourse by a security guard during an investigation of a shop lifting incident. The customer alleged that the employer negligently retained and supervised the security guard because it failed to adequately investigate prior similar complaints against him, allowed the security guard to question the Plaintiff alone, and failed to monitor the security office. The Court held that the employer could be liable because its investigations of similar complaints appeared to be inadequate, and because the employer failed to ensure that its employees complied with its security policies.
• In Dupont v. Aavid Thermal Technologies, Inc., 147 N.H. 706, 798 A.2d 587 (2002), the Court held that an employer could be liable for failing to warn an employee of a hazardous condition when it was informed that his assailant had a weapon, was aware of employees bringing weapons to work, was aware of past similar incidents in the workplace, and failed to contact law enforcement.
• In McDonald's Corp v. Ogborn, 309 S.W.2d 274 (Ky. 2010), an employee was sexually assaulted at work by her supervisor and supervisor's fiancé after a phone caller impersonating a police officer persuaded the supervisor to engage in this conduct. The Court held that the employer had a duty to warn the employee of hoax calls of this kind because similar incidents had occurred at several other McDonald's stores.
• In Yunker v. Honeywell, 496 N.W.2d 419 (Minn. 1993), a wrongful death action was asserted against an employer after an employee was killed by a co-worker. The employer knew that the assailant had violent propensities because he had sexually harassed female employees, threatened to kill another co-worker, and engaged in repeated outbursts toward the murdered employee including scratching the words "one more day and you're dead" on her locker. The Court held that the employer breached its duty of care to the employee under a negligent retention theory.

Employers have also been found liable for failing to provide adequate security in the workplace. For example, in Schneider v. National R.R. Passenger Corp., 987 F.2d 132 (2d Cir. 1993), an Amtrak ticket agent was awarded $1.75 million dollars when she was robbed in the employer's parking lot because her employer had failed to provide adequate security on their premises.

Only a few states have addressed the growing concern over workplace violence by enacting laws that either shield employees from workplace violence or require employers to implement workplace violence prevention programs. Below is a list of those states:

III. TENSIONS RISING

State laws and federal guidelines impact an employer's ability to comply with OSHA's general duty clause and its ability to limit exposure to liability. Those laws and guidelines include the following:

a) "Parking Lot Statutes"

Employers who wish to comply with OSHA's general duty clause and reduce their liability by addressing guns in the workplace are faced with an uphill battle in many states. Several states have expanded an individual's right to bear arms in and around the workplace by enacting so called "workplace protection laws" or "parking lot statutes" that permit employees to store guns in their vehicles in company parking lots and prohibit employers from restricting this right.³⁴ Similar legislation is currently pending in Alabama, Pennsylvania, and Tennessee.³⁵

Several states also require employers to post signs regarding any firearm restrictions,³⁶ while others make it unlawful for an employer to: (1) ask employees or job applicants whether they possess a firearm and/or search a vehicle for firearms, and (2) condition terms of employment on the relinquishment of an employee's right to possess a firearm.³⁷

Courts have been reluctant to uphold challenges to "parking lot statutes." For example, in Ramsey Winch v. Henry, 555 F.3d 1199 (10th Cir. 2009), the Circuit Court reversed a trial court ruling that gun-related workplace violence was a "recognized hazard" under the general duty clause, and, therefore, an employer that allows firearms in the company parking lot may violate the Act. The Circuit Court noted that "an employee's general fear that he or she may be subject to violent attacks is not enough to require abatement of a hazard under the general duty clause." Similarly, in Florida Retail Federation Inc. v. Attorney General of Florida, 576 F.Supp.2d 1281 (N.D. Fla. 2008), the District court upheld Florida's "guns-at-work" statute under the following rationale: "a gun stored in a vehicle in a parking lot while the gun owner is at work will almost always stay in the vehicle and affect nobody's safety..., and that "a gun in the parking lot sometimes --though rarely -- will be used by an irate worker to commit a crime that would not occur if the gun w[as] not readily available."

b) EEOC Guidance on Background Checks

Background checks are an important and useful tool for employers to obtain relevant information regarding a candidate's reputation, character and qualifications. It can reveal undisclosed gaps in a candidate's employment or education background, and inconsistencies and/or exaggerations in employment applications and resumes.³⁸ It can also disclose previous incidents of workplace violence and a candidate's criminal history to determine whether he/she poses a risk to the employer's workforce and whether such history demonstrates that the candidate is unfit to perform the essential functions of a job.³⁹ However, while mitigating workplace violence starts with an analysis of an employer's hiring practices, there are federal and state limitations on these practices.

In 2012, the Equal Employment Opportunity Commission (EEOC) announced that it would focus on discrimination cases stemming from background checks, and that it may be illegal for employers to have blanket policies which prohibit the hiring of candidates with criminal records.⁴⁰ According to the EEOC, employers who maintain these types of blanket policies may be in violation of federal and/or state discrimination laws because such policies may create a disparate impact on a particular protected group.⁴¹ However, in most cases, employers are permitted to exclude candidates on the basis of their criminal background provided the candidate's criminal history "bear[s] a demonstrable relationship to successful performance of the jobs for which it was used," and the employer [must] provide the candidate with an opportunity to demonstrate that his/her criminal record does not impact his/her fitness for the job.⁴²

Additionally, several states have enacted laws that are designed to counteract the growing trend of utilizing background checks among employers and increase employment opportunities for otherwise-qualified applicants. These laws include:

• "Ban-the-Box" legislation that prohibit employers from asking about criminal convictions on an initial employment application;⁴³
• Laws that prohibit employers from refusing to hire an applicant or take adverse action because of a criminal conviction;⁴⁴
• Laws that prohibit employers from obtaining or using convictions that have been expunged by the courts;⁴⁵ and
• Laws that limit inquiries into a candidate's criminal background by prohibiting questions about arrests that did not result in convictions, "old" convictions, and misdemeanors or certain first-time offenses.⁴⁶

IV. EFFECTIVE WORKPLACE VIOLENCE CRISIS MANAGEMENT PROTOCOL

Establishing clear goals and workplace expectations is a critical component of an effective workplace violence crisis management protocol. For starters, employers should establish a zero-tolerance policy for workplace violence.⁴⁷ This places an employee on notice that the employer has "drawn a line in the sand" with regard to workplace violence and reprisals for reporting such conduct.⁴⁸ It can also be asserted as a defense to a negligent retention and/or supervision claim. For example, in Hout v. City of Mansfield, 550 F.Supp.2d 701 (N.D. Ohio 2008), the District Court did not find the employer liable for negligent retention because it, among other things, maintained and consistently enforced a zero-tolerance policy, thereby demonstrating that it prevented and corrected harassing behavior.

An employer should also establish an effective workplace violence crisis management protocol to communicate its goals and expectations. OSHA recommends that a such protocol include:

• An analysis of potential risks and exposures to employees in the workplace;
• A coordinated approach by management and employees to eliminate workplace violence;
• A written policy tailored to the organization's needs; and
• Education and training of management and staff regarding workplace violence.⁴⁹

The first component of any effective crisis management protocol requires an employer to examine its worksite to identify existing or potential safety concerns. Such analysis should include a thorough review of any available injury and/or illness statistics, employee feedback on what they believe to be the most prevalent threats in the workplace, and the effectiveness of current security measures.⁵⁰

The second component of an effective crisis management protocol is a coordinated approach to the elimination of workplace violence. The formation of a crisis management team is essential. The management team should consist of individuals with diverse expertise and experience at different levels of an organization. For instance, a team may include union members, management, human resources, security personnel, in-house legal staff and medical/psychology staff.⁵¹ There are several reasons for having a crisis management team involving all different stakeholders of an organization. First, no one person has the knowledge, training, and expertise to develop, implement and coordinate a workplace violence prevention plan. Second, the more inclusive a crisis management team is the more comprehensive the plan will be. Third, through coordinated buy-in, a clear and consistent message can be communicated to management and staff at all levels of the organization, thereby ensuring that they have an equal commitment and interest in keeping the workplace free from violence. It is also important to consider the political dynamics of an organization when putting together a crisis management team because information gathering may be hindered by individuals and/or departments who are reluctant to disclose workplace violence information or enforce the policy.⁵² Effective workplace violence protocols may also be hindered by organizations such as labor unions whose leaders may be reluctant to direct their membership to comply with these protocols or report incidents of violence by fellow brethren.

A third component of an effective crisis management protocol is the development of a written policy that is specifically tailored to the organization's needs. This policy should, at a minimum, include the following: (1) a zero-tolerance statement; (2) a definition of workplace violence; (3) the type of conduct that constitutes workplace violence; (4) consequences for engaging in workplace violence; (5) a process for reporting, reviewing and responding to workplace violence; (6) a prohibition of reprisal for reporting workplace violence; (7) clear guidelines to assist those individuals responsible for reviewing and responding to incidents of workplace violence; (8) procedures for maintaining records of workplace violence incidents; and (9) a post-incident assessment of workplace violence protocols.⁵³ As part of this plan, employers should consider developing relationships with local law enforcement agencies to assist in workplace violence incidents, to improve workplace safety standards, and to help identify additional hazards in the workplace. Employers should also provide cultural awareness training to raise the overall level of cultural competence and respect among the workforce.

The final component of an effective crisis management protocol is training and education. All stakeholders should be trained on how to prevent, recognize, and address workplace violence. Supervisors should be trained on how to detect early warning signs of workplace violence, how to de-escalate tension between employees, and how to promptly report workplace violence incidents.⁵⁴ Employees should be trained on how to recognize and report observable workplace violence, obtain a copy of the workplace violence plan, and obtain post-incident counseling.⁵⁵

Finally, these protocols should be reviewed at least annually to determine whether there are any workplace violence trends, whether the plan is effective in preventing and/or reducing workplace violence incidents, and whether the reporting and record-keeping procedures established by the employer are sufficiently comprehensive to capture all relevant information regarding workplace violence.⁵⁶

V. CONCLUSION

Workplace violence remains a growing and immediate concern for employers. While efforts to reduce workplace violence may be hampered by current gun laws, hiring restrictions, and unforeseeable risks, implementing a thoughtful and effective workplace violence crisis management protocol is the best way of insulating an employer from liability and reducing the risk of injury and possibly death of its employees. To that end, it is necessary for an employer to know its workforce, evaluate potential risks, share information among different stakeholders, constantly train staff, and develop a plan of action to address and remediate incidents of workplace violence.

Footnotes

1 Yendelela Neely Anderson is an Associate with the firm of Kilpatrick Townsend & Stockton; Celeste Bradley is an Associate General Counsel with Blue Cross/Blue Shield of Tennessee; Waverly D. Crenshaw, Jr. is a Partner with the firm of Waller Lansden Dortch & Davis, LLP; Sheldon W. Snipe is a General Attorney - Labor and Employment with AT&T Services, Inc. The Panel acknowledges and thanks Aron Z. Karabel for his extensive research and valuable assistance in preparing this paper.

2 Madeleine Baran, "Accent Signage Employees Fought for Lives with Shooter." Minnesota Public Radio
http://minnesota.publicradio.org/display/web/2012/10/01/news/minneapolis-shooting-timeline (last visited March 5, 2013); Carla K. Johnson and Patrick Condon, "Shootings Expose Cracks in US Mental Health System. Minnesota Public Radio http://minnesota.publicradio.org/display/web/2012/10/02/law/engeldinger-shootings-mental-health-system (last visited March 5, 2013).

3 "OSHA Fact Sheet." Occupational Safety and Health Administration; Arnold R. Isaacs, "Workplace Violence: Issues in Response." Federal Bureau of Investigation http://www.fbi.gov/stats-services/publications/workplace-violence (last visited March 6, 2013).

4 Mike Tsikoudakis, "Stay Mindful of Cyber Bullying in the Workplace." http://workplaceviolencenews.com/2011/04/05/stay-mindful-of-cyber-bullying-in-the-workplace/ (last visited March 6, 2013).

5 "Workplace Violence Prevention Strategies and Research Needs." Department of Health and Human Services (Sept. 2006).

6 Erika Harrell. "Special Report: Workplace Violence, 1993-2009." Bureau of Justice Statistics (March 2011). http://bjs.ojp.usdoj.gov/content/pub/pdf/wv09.pdf. (last visited March 6, 2013).

7 Workplace Violence: Issues in Response, supra, note 3; Cohen, Mark, "Elements of an Effective Workplace Violence Program." The Colorado Lawyer 33, no. 7 (July 2004).

8 Id.

9 Tanya Restrepo and Harry Shuford, "NCCI Research Brief." NCCI Holdings, Inc. (January 2012). http://www.ncci.com/documents/Workplace_Research.pdf (last visited March 2, 2013).

10 "Survey of Workplace Violence Prevention, 2005." United States Department of Labor, Bureau of Labor Statistics (October 2006).

11 "Workplace Homicides from Shooting." United States Department of Labor, Bureau of Labor Statistics (January 2013).

12 OSHA Fact Sheet, supra, note 3.

13 "Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers," United States Department of Labor, Bureau of Labor Statistics. http://www.osha.gov/Publications/OSHA3148/osha3148.html (last visited March 6, 2013).

14 "2012 Liberty Mutual Workplace Safety Index," Liberty Mutual Research Institute for Safety.

15 Workplace Homicides from Shooting, supra, note 11.

16 Id.

17 Id.

18 Id.

19 "Workplace Violence," Occupational Safety and Health Administration. http://www.osha.gov/SLTC/workplaceviolence/index.html (last visited March 6, 2013).

20 Id.

21 Special Report: Workplace Violence, 1993-2009, supra, note 6.

22 "Preventing Violence Against Taxi and For-Hire Drivers. OSHA Fact Sheet (2010); Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments, OSHA Publication, 3153-12R (2009); Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers. OSHA Publication 3148-01R (2004).

23 2012 Liberty Mutual Workplace Safety Index, supra, note 14.

24J oanne Sammer, "Combating Workplace Violence." Business Finance (June 1, 1998). http://businessfinancemag.com/article/combating-workplace-violence-0601?page=0%2C1 (last visited March 6, 2013).

25 Id.

26 Ronet Bachman, "Crime Data Brief." United States Department of Justice, Bureau of Justice Statistics (July 1994). http://bjs.ojp.usdoj.gov/content/pub/pdf/thefwork.pdf (last visited March 6, 2013).

27 Sheryl Erdmann, "Eat the Carrot and Use the Stick: The Prevalence of Workplace Violence Demands Proactive Federal Regulation of Employers." Valparaiso University Law Review (2009).

28 29 U.S.C. §654.

29 29 U.S.C. §666.

30 Carson v. Canning, 180 Mass. 461, 62 N.E. 964 (1902); Hathcock v. Mitchell, 277 Ala. 586, 173 So.2d 576 (1965); C.K. Sec. Sys, Inc. v. Hartford Acc. & Indem. Co., 137 Ga. App. 159, 223 S.E.2d 453 (1976); Murray v. Madoc State Bank, 181 Kan. 642, 313 P.2d 304 (1957); DiCosala v. Kay, 91 N.J. 159, 450 A.2d 508 (1982).

31 Doe III v. the State of Washington, Department of Social and Health Services, Western State Hospital, No. 35130-7-II, 2008 WL 929885, at *9 (Wash. App. Div. 2, April 8, 2008).

32 Hersh v. Kentfield Builders, Inc., 385 Mich. 410, 189 N.W.2d 286 (1971).

33 Dupont v. Aavid Thermal Technologies, Inc., 147 N.H. 706, 798 A.2d 587 (2002) (citing the Restatement [Second] of Torts §314A); Thoni Oil Magic Benzol Gas Stations, Inc. v. Johnson, 488 S.W.2d 355 (Ky. 1972); Sunderland v. Lockheed Martin Aeronautical Systems Support Co. , 130 Cal.App.4th 1, 29 Cal.Rptr.3d 665 (Cal.App. 2 Dist. 2005); Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012).

34 These states include Alaska, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, North Dakota, Oklahoma, Texas, Utah and Wisconsin.

35 Margaret Newkirk, "Guns-to-Work Laws Spread in U.S. as Business Fights NRA." Bloomberg (December 11, 2012) http://www.bloomberg.com/news/2012-12-12/guns-to-work-laws-spread-in-u-s-as-business-fights-group.html (last visited March 6, 2013).

36 These states include Alaska, Kansas, Kentucky, Minnesota, Nebraska and South Carolina.

37 These states include Florida, Georgia, Indiana, North Dakota and Oklahoma.

38 Markita Cooper, "Beyond Name, Rank, and Serial Number: 'No Comment' Job Reference Policies, Violent Employees and the Need for Disclosure-Shield Legislations." Virginia Journal of Social Policy and the Law (Winter 1998).

39 Id.

40 EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (April 25, 2012).

41 Id.

42 Id.

43 "Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records." National Employment Law Project (November 2012). http://www.nelp.org/page/-/SCLP/2011/CityandCountyHiringInitiatives.pdf?nocdn=1 (last visited March 4, 2013).

44 "State Laws and Their Impact on Use of Criminal Records", General Information Services, Inc.'s E-Report. http://hr.4act.com/documents/State_Laws_and_Their_Impact_on_Use_of_Criminal_Records_for_Emplo.pdf (last visited March 6, 2013).

45 Id.

46 Id.

47 Robert Levin, "Workplace Violence: Navigating Through the Minefield of Legal Liability." The Labor Lawyer 11, no. 2 (Summer 1995).

48 OSHA Fact Sheet, supra, note 3.

49 "Recommendation for Workplace Violence Prevention Programs in Late-Night Retail Establishments." Occupational Safety and Health Administration, U.S. Department of Labor. http://www.osha.gov/SLTC/workplaceviolence/index.html (last visited March 4, 2013).

50 Id.; Workplace Violence Prevention Strategies and Research Needs, supra, note 5; Eat the Carrot and Use the Stick, supra, note 27; Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers, supra, note 13.

51 Id.

52 Id.

53 Id.

54 Id.

55 Id.

56 Id.

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