What I Learned Suing Employers that Every Small Business Owner Should Know

During the 30 years I worked as an investigator, I built a lot of cases against businesses where violence had occurred. 

Often those lawsuits were on behalf of 3rd party invitees harmed by an act of violence at those businesses. Other times they were on behalf of an employee when the attorneys sought to bring a workplace violence case to civil court rather than through the workers’ comp system. 

At other times, employers asked me to conduct independent fact-finding internal investigations following an act of violence at their business involving a 3rd party or their employees. Those investigations provided employers with a better understanding of what led to the incident allowing them to take appropriate corrective action, and to better prevent similar incidents from occurring.

My work was always done after the fact. AFTER serious violence happened with lifelong impact on our clients.

After an 8-year boy was hit in the head with a hammer by an invitee at a store despite the man having been reported to employees prior to our client being attacked. 

After a 40-year-old woman was stabbed 28 times during an attempted robbery in a parking lot, despite several people reporting to store employees incidents involving the robber over successive days before our client being attacked. 

After a 55-year-old store employee, working alone, was attacked with a hammer by a man after customers she was helping left the store.

In each of these cases, the violence was entirely preventable had the employers taken workplace violence more seriously and implemented an effective workplace violence prevention program. 

And for the employers we sued, their businesses took a hit. And rightfully so.

I don’t want to see anyone else suffer in the way my clients did. Or for businesses to risk losing everything they’ve worked for because of violence. So in this piece, I’ll address where the employers went wrong, so that you can learn from their failures so that you can shield your small business, protect your people and your clients, customers, patients, and vendors, and close your liability gaps.

And that’s why I offer the free 15-minute California Workplace Violence Compliance & Safety Snapshot. It’s the conversation I wish those employers had before I ever got involved. Schedule your call today. And if you prefer email to a call, send me an email with 15-minute compliance & safety snapshot in the subject line. 

Mistake #1: Misunderstanding Workplace Violence Sources: American pop culture misrepresents workplace violence. Popular culture sees workplace violence as employee driven violence.

Whether it was postal employees going postal in the 1980s, or fired employees, being escorted out of the building with their possessions by corporate HR and security in the 1990s.

Pop culture views workplace violence as a byproduct of layoffs, and downsizing, or from employees “snapping” due to lifestyle issues like debt, alcoholism, or divorce.

Employers embraced that view as many started profiling employees looking to identify those who might snap, and conducting active shooter training. 

Small business owners embraced this view too. They’d look at their staff and think to themselves we don’t have to worry about that kind of violence because our employees are good people. So why bother with violence prevention at all.

But pop culture got it wrong and as a result real world workplace violence puts everything you’ve worked to accomplish at risk. 

Active shooters account for less than 1% of workplace violence incidents. And current and former employee sourced violence is only about 25% of all workplace violence incidents.

Your business is 3xs more likely to be impacted by workplace violence caused by those you invite to your workplace, by members of the public, and by people who are personally connected to your employees from outside the workplace than by your current and former employees.

California’s workplace violence prevention law’s requirements are rooted in this larger and more accurate view of work related violence. And you should be too.  

Everything from your assessments to your employee trainings should focus on the much greater likelihood of workplace violence being driven by non-employees. And this is especially true of invitees. Those customers, clients, patients, and vendors who come to your place of business as part of the course and scope of your business.

And not only must you factor in the risk to your employees and business operations from them. But you also have a duty to protect those you invite to your business from violence too.

Mistake #2: Failing to Protect 3rd Parties: Many workplace violence investigations I conducted on behalf of plaintiff attorneys were on behalf of 3rd parties (“Invitees) who were injured while at the employer's business as part of the ordinary course and scope of the business.

And one of the things I found over and over again, was that employers routinely ignored the safety hazards that 3rd parties faced while at their place of business. 

There were two reasons for this. The misunderstanding about sources of violence (see mistake #1), and the belief that their employees would never physically harm someone there to receive or provide services.

But the risk to invitees doesn’t come just from employees. It comes from other invitees, members of the public, and those personally involved with your employees from outside of work. 

And the financial costs to your business from this type of workplace violence can be catastrophic. A major incident can even harm your business to the point where it ceases to be profitable.

If you are sued as a result of harm to a 3rd party you’ll end up in civil court since that doesn’t fall under workers’ compensation. Jury awards and settlements in civil court for this type of workplace violence can easily reach six or seven figures. And some insurance companies will not cover intentional torts like battery, which is what workplace violence encompasses.

Your workplace violence prevention plan must include how to help keep 3rd party invitees to your business safe from violence. That includes front desk and waiting area safety, as well as parking lot safety, and ingress and egress safety too.

One of the biggest challenges for small businesses is that you lack ways to control the conduct of 3rd parties. True you can stop providing services to them or deny access to your location. But, that affects what you do and who you serve. For employers it’s most effective to implement safety practices that help your staff keep third parties safer, and to be able to communicate about, diffuse, and address any violence incidents that develop that can impact not just your employees but who your employees serve.

Mistake #3: Failing to Address Potential Safety Hazards as Soon as They Arise: The single most frustrating aspect of all the cases I investigated, was that most events could have been prevented had employers developed effective workplace violence prevention plans, trained their employees, and then took action at the first signs of a safety hazard. 

Too many times employers figured a near miss was a miss, so no need to do anything further about it. But a near miss isn’t a miss. It’s a warning sign of a problem that has exposed itself to you.

And when something is brought to your attention, or to your employees attention, it needs to be addressed quickly before it spirals into violence. Information is a tool. Which can guide the action’s you take to make things safer for everyone.

The best way to protect your business is to prevent problems. It’s not to react to an incident after the fact.  But too often a lack of action by business owners after becoming aware of a safety hazard is what I found during my investigations.

Being dismissive of a developing problem and failing to take action when it surfaces leads to a greater likelihood that a violent incident occurs, and to greater economic damages against your business.

I’ve also seen where employers use their investigation process not to address the problem that was identified, but as a way to cover their own butts. And that’s not what an investigation into a workplace violence incident should be about.

An effective investigation allows you to find out what actually took place, and to use that information to make the changes needed to prevent violence from occurring whether it’s caused by the public, an invitee, an employee, or someone personally connected to your employee. 

It’s my hope that by sharing with you three common mistakes that I saw while investigating workplace violence that you’ll be able to make sure that you don’t make those same mistakes.

It’s why I help employers develop and implement workplace violence prevention plans. And it’s why I offer the free 15‑minute California Workplace Violence Compliance & Safety Snapshot. It’s the conversation I wish those employers had before I ever got involved.