OSHA: A Sleeping Giant Awakes?

whip in

Many countries around the world consider workplace violence to be an important worker health and safety issue but the U.S. Occupational Safety and Health Administration has been oddly silent on this issue..

 That’s why it is significant that OSHA recently cited a  Dallas company for safety violations following a robbery that resulted in the  horrific death of a store clerk at a Whip In convenience store in Garland, Texas. 

 The OSHA citations carry proposed fines that are  underwhelming – $19,600.   However, the action sends a message to convenience store owners that they would be well advised to pay attention to the issues of workplace violence. 

 In May of 2012, the store clerk, Nancy Harris, 76, died from second- and third-degree burns after she was set on fire during the robbery. Police said Matthew Lee Johnson, 36, arrived at the Whip-In shortly after the store opened at 7 a.m. on a Sunday. Officers said he carried in a bottle of flammable liquid and used it to douse Harris and then set her on fire — after clearing out the cash register.

OSHA cited TMT Inc., owner of the Whip In chain,  for four serious safety violations.  OSHA contends that if the employer had implemented appropriate control measures and provided training to ensure awareness of potential violence, it is possible that Ms. Harris’ death could have been avoided.

OSHA could not cite any specific violations of their safety standards, so each store was cited with violating OSHA’s “general duty clause” for failing to provide a workplace free from recognized hazards likely to cause serious injury or death.

While the fine is a pittance, it is not inconceivable that the TMT will face a civil lawsuit as a result of Ms. Harris’ death and  the OSHA action could be a significant factor in  such a lawsuit.

 OSHA’s Dallas Area Office opened an investigation at the Garland store in May after the robbery and later investigated the company’s three other stores in Dallas and Mesquite. OSHA  found that workers at those locations were exposed to the same or similar workplace violence hazards.  TMTemploys more than 60 employees across the Dallas-Fort Worth area.

According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), of the 4,547 fatal workplace injuries that occurred in the United States in 2010, 506 were workplace homicides.

  OSHA defines workplace violence as any act or threat of physical violence, harassment, intimidation or other threatening and disruptive behavior that occurs at a work site.  According to OSHA, workplace violence  includes behavior ranging from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

 More information on workplace violence is available at OSHA’s website at www.osha.gov/SLTC/workplaceviolence.

Workplace Bullying: The Big Picture

I am pleased to be quoted in a  Businessweek  feature on the problem of workplace bullies but I also find it frustrating that  the American media consistently fails to see the big picture about this serious national problem.

Workplace bullying is not just about misguided individuals who bully co-workers and subordinates. More importantly, it is about American employers.

American employers permit bullying in the workplace because there is no law or regulation that requires them to stop it – despite the fact that it is widely recognized as a form of workplace violence. Other industrialized countries recognize workplace bullying as an important public health and safety problem. And decades of research show that workplace bullying causes targets to suffer potentially severe emotional and physical harm.

Only employers can stop workplace bullying. Employees who are targeted for bullying generally are completely helpless to do anything about it, especially if the bully is a superior.

Why don’t employers stop it?

Because in America, workplace bullying is seen as a prerogative of the employer. In fact, some unscrupulous employers use bullying strategically to accomplish a goal – such as to avoid unions, downsize without paying unemployment compensation, or to evade a potential worker’s compensation claim. In my own practice of law, I saw many cases where employees were bullied and driven out of the workplace by an employer after they complained about wage theft (which, by the way, is epidemic in the United States). 

Why don’t workers do anything about it?

The vast majority of American workers are completely priced out of the American legal system and,  besides, federal judges (who have lifetime tenure barring bad behavior) are appallingly ignorant and unsympathetic to claims of  employment discrimination and Intentional Infliction of Emotional Distress.

So one in three or four American workers are bullied by employers, either directly or because the employer tolerates or fails to stop an abusive workplace environment.  

This all  stands in sharp contrast to other industrialized countries – including the European Union – where authorities recognize workplace bullying as a major problem and have placed the burden of eliminating workplace bullying squarely on employers.

Activitists in the United States have been spinning their wheels for more than a decade in an attempt to get a state-by-state solution to the problem of workplace bullying but the only real answer lies with the federal government.  States should act – and I hope they will act – but this is not the solution.  Today, many states will do virtually anything to attract new business; it is wishful thinking that they will voluntarily pass a law protecting targets of workplace bullying  if they can gain any competitive edge by not doing so. 

Meanwhile, the U.S. Occupational Safety and Health Administration has acknowledged the problem by enacting workplace bullying protections for its own employees but it has failed to take any steps to protect the health and safety of millions of American workers across the nation.

This blog is a member of the coalition Protect-US-Workers that has launched a petition drive asking U.S. President Barack H. Obama and U.S. Secretary of Labor Hilda L. Solis to formulate a national response to the problem of workplace bullying.

Talk to your legislators. Sign the petition.

Federal Agencies Urged to Address Workplace Bullying


Create Culture of Respect

When an incident of assault, harassment, intimidation, or bullying occurs in a federal workplace, it is usually caused by an employee rather than a customer, criminal, or someone who has a personal relationship with the victim.

This is the conclusion of a study on workplace violence in the federal sector released in September by the U.S. Merit Systems Protection Board, an independent federal agency that promotes the efficient and effective use of the federal workforce. 

 The study, entitled Employee Perceptions of Federal Workplace Violence, recommends that federal managers “foster organizational cultures that do not tolerate violent behavior and that takes reports of such behavior seriously.”

 Essentially the board is recommending that federal agencies adopt workplace anti-bullying and harassment policies that cultivate  “organizational cultures that treat employees with dignity and respect.”   

 The study’s definition of workplace violence includes emotional violence –  bullying, harassment and intimidation – as well as physical violence.

 The study found that overall 13 percent of the federal employees surveyed – which is estimated to be one in eight federal employees – observed an incident of workplace violence in the past two years. The incidence was much higher in certain occupational groups – 26 percent of federal employees in medical/hospital occupations and 21 percent in police/security occupations.

 About 54 percent of the violence observed was perppetrated by current or former federal employees; 34 percent was perpetrated by a customer; 7 percent by an individual who had a personal relationship with an employee; and four percent involved criminals.

 Overall, the report states that 73 percent of the employees said their agency took sufficient steps to ensure their safety from violence in the workplace.  However, that figure shrank to only about one-third  of employees who had observed workplace violence by current or former employees or by individuals who had a personal relationship with an employee.

 The report recommends that agencies adopt  strategies to deal with workplace violence by current and former employees

 Specifically, the report recommends the following strategies:

  • Foster healthy organizational cultures that do not tolerate aggressive or violent behaviors;
  • Complete appropriate pre-employment background checks;
  • Train employees on workplace violence issues;
  • Resolve serious workplace conflicts before they escalate into violence; and
  • Administer human resources programs properly so as not to introduce undue stress into the workplace.  

According to the report, conflicts in the federal workplace are fairly commonplace. The survey states that 49 percent of supervisors and 37 percent of all employees indicated that they had dealt with at least one serious conflict during the past two years. This survey defined “serious conflict” as one that the survey participant “felt if not addressed would result in negative workforce consequences such as low morale, low organizational productivity or performance, perceived unfairness, absenteeism, attrition, or even fear.”

The findings in the report are based primarily on an analysis of the MSPB’s 2010 Merit Principles Survey, which surveyed 71,910 full-time, permanent, non- Postal federal employees. The workers were asked about their perceptions of their jobs, work environments, supervisors, and agencies. There was a 58 percent response rate and 42,020 surveys were deemed valid.

 The United States lags behind many other industrialized countries that have adopted laws and regulations to address workplace bullying. Last year, the U.S. Occupational Safety and Health Administration  passed a workplace anti-bully measure for its own workers. And now the Merit Systems Protection Board is recommending other federal agencies do the same. However, there is no federal or state legislation protecting private sector employees from workplace bullying.