The Advantage, October 1998

Workplace Violence: What a CEO Can Do to Reduce the Risk

by Larry J. Chavez, B.A., M.P.A.
Sergeant, Sacramento Police Department
Hostage Negotiations Team

No one doubts that foremost on a CEO's mind is keeping the organization afloat in the face of vigorous and unrelenting competition. But a close second to that has got to be the people concerns. An organization succeeds or fails on the basis of its workforce. Protection of people is also the purview of the CEO. Failures here can have deadly consequences.

Workplace violence is often viewed as a mere annoyance, just another workplace scourge like sexual harassment. Granted, both certainly qualify as workplace scourges, but workplace violence kills people and those who manage to survive it are never again the same. The aftermath of such violence has cost organizations millions of dollars.

Unfortunately, workplace violence is frequently dealt with by means of a hand off of the problem from the CEO to the human resources manager with instructions to deal with the problem as seen fit. Many times this is done without any serious commitment from CEO to see that the issue is thoroughly addressed. This lack of emphasis has forced many CEOs to revisit the issue in the form of costly and time-consuming litigation.

Workplace violence is the most frequent cause of death for women on the job and the second for men. Incidents of employees killing supervisors have doubled in the past ten years. On the average, American workers murder three to four supervisors a month.

And murder is not the only detriment that employers suffer. Workplace violence also includes other acts such as assaults, intimidation, stalking, vandalism and sabotage. Employees harboring contempt for their employers commit theft that contributes to 30% of business failures.

OSHA identifies three types of workplace violence:
1. Stranger violence, such as the robery and shooting of a convenience store clerk,
2. Client violence, such as a shooting of a lawyer by his client and,
3. Employee violence, murder by the person we hire.

And murder is not the only detriment that employers suffer. Workplace violence also includes other acts such as assaults, intimidation, stalking, vandalism and sabotage. Employees harboring contempt for their employers commit theft that contributes to 30% of business failures.

The CEO must see to it that managers and supervisors are aware of these distinctions. Why? Because many of them believe that workplace violence is random and that it only happens to such people as convenience store clerks or cab drivers. Managers must be aware that we often hire the person that kills us. It is the killer in our ranks that we must address and there is much that a CEO can do.

Never ever allow anyone under your control to strip any person, employee or otherwise, of their personal dignity.

I speak as a hostage negotiator whose function it is to resolve crises involving human beings. My colleagues and I have had to piece together some of the most egregious of situations under some of the most trying of circumstances. Many murders and hostage takers have conveyed that they had been stripped of their dignity in some manner. They had nothing to lose by inflicting violence on others. I speak from experience when I say that a person stripped of dignity is a dangerous person indeed. Managers and supervisors must be aware of this point when dealing with employees.

A person can be hired, trained, supervised, disciplined and even fired with dignity. If you violate this cardinal rule, or allow someone else under your control to do so, you may be contributing to unimaginable horror.

I. Emphasize, in the form of a stated policy from the highest level in your organization that workplace violence, in any form, will not be tolerated.

The goal here is to establish and maintain a zero-tolerance workplace violence policy. Identify what behavior is inappropriate.

II. Formulate a representative team of employees to develop policies and procedures for the awareness and prevention of workplace violence.

Employees claim ownership of ideas they contribute. This empowerment is also good assurance that they will participate in any efforts a CEO might employ to reduce the workplace violence threat. Employees must be recognized for their contributions.

III. Educate employees on workplace violence awareness, early warning signs, emergency procedures and prevention.

IMPORTANT: Make absolutely sure that those who train your workforce are experienced crisis trainers who employ reality-based workplace violence awareness and prevention instruction. This will ensure that your employee's questions are answered!

IV. Provide your employees with training sufficient to improve their "survivability" skills in the event of a serious incident of workplace violence.

Every work site is unique. Employees should be confident that their facility provides them with protection or escape in the event of emergency.

V. Develop policies for the proper hiring, training, supervision, discipline and retention of employees with an emphasis on workplace violence prevention.

Human resource professionals are the organization's first line of defense by virtue of their employee acquisition function. Managers and supervisors must have a significant knowledge of early warning signs and violence prevention concepts.

VI. Designate a management representative to handle workplace violence complaints and to encourage employees to report all threats or incidents of workplace violence.

This person should oversee formal and informal reporting procedures, identify training needs and take immediate action at the first instance of workplace violence. He or she must also act in an advisory capacity keeping the CEO abreast of any trends or problems.

VII. Establish employee assistance and peer support programs and encourage employees to seek help when needed and to assist employees who have already experienced workplace violence.

This will address the emotional and psychological needs of employees who have been traumatized.

VIII. Employ conflict resolution to address problems between employees.

Conflict resolution provides employees with a fair, sensible and civilized means of resolving disputes.

IX. Take immediate action against all forms of workplace violence.

Taking immediate action at the first instance of workplace violence sends a message to rule violators that there are significant consequences for inappropriate behavior. At the same time, a positive message is sent to other employees assuring them that their safety is your top concern.

X. Establish a working relationship with local law enforcement and prepare to assist them in the event of emergency.

Working with law enforcement provides them with a timesaving edge in the event of a serious incident of workplace violence at your facility. Maps, building diagrams, escape routes and means of communication are among the items of concern to law enforcement when a crisis occurs.

XI. Employ legal remedies that address the issues of workplace violence.

All staff should be aware of legal remedies such as temporary restraining orders and domestic restraining orders and be able to obtain such remedies on an emergency basis. They should also be able to recognize the elements of certain crimes against people and property.

XII. Assign a designated media relations officer responsible for the timely and proper dissemination of information.

The "right to know" is valued and protected by law. The media will operate with your cooperation or despite it. If you do not accommodate the media, they will go to sources that may be to your detriment. Failings here may also hamper law enforcement efforts to resolve a crisis at your facility.

XIII. Employ the highest practical level of physical security in your workplace.

Your security staff should be trained by knowledgeable crisis trainers on how to respond to an in-progress emergency such as a hostage taking or a barricaded subject. They should not make the situation worse by virtue of their actions. If they are trained sufficiently, they should be able to stabilize the situation until law enforcement arrives.

In order for a program to evolve and become "state of the art," evaluation is a must. Seek out evaluators who will give you a true assessment of your efforts. Correct any weaknesses immediately.

Addressing the workplace violence issue is the right thing to do because it protects people. Other positive effects include being in compliance with government regulations, reducing your odds of becoming a target and limiting liability in the event of a violent incident. With the workplace violence problem properly addressed, the CEO can again be concerned with keeping the organization competitive in the face of serious competition.

Mr. Chavez can be reached at: endwpv@aol.com. You can view his web site at: http://members.aol.com/endwpv/index.html.

California Supreme Court Gives Employers Bad News

Historically, employees who have been injured on the job were held to Workers' Compensation claims as the sole remedy for their situations. In California, at least, there has been a change to that limitation.

Employers now face larger risks of lawsuits when dealing with injured workers. In the case of "City of Moorpark v. Superior Court" the state Supreme Court has ruled that an injured worker may recover damages under workers' compensation AND bring a separate lawsuit claiming disability discrimination under the California Fair Employment and Housing Act (FEHA).

Section 132a of the state's Labor Code prohibits discrimination against an employee who has brought a workers' compensation claim for an on-the-job injury. The Court said, (Section) 132a (of the Labor Code) does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies. We disapprove any cases that suggest otherwise."

Because disability discrimination is against the public policy in the state, the Court said that an employee may bring a common law wrongful discharge claim for disability discrimination, in addition to a claim under Labor Code Section 132a.

While employees will not be able to recover three times for the same injury, employers may have to defend themselves against three different claims:
1) For a Labor Code Section 132a violation (the employer must pay for the defense cost)
2) For a violation of the FEHA, which prohibits discrimination on the basis of disability
3) For a wrongful discharge claim in violation of public policy prohibiting discrimination on the basis of disability.

All of these are state court issues and do not take into account the remedies which might be available under federal law in federal courts.

So, what's an employer to do?

If you are even thinking about taking disciplinary action or force reduction action against someone who has a worker's compensation claim pending, we strongly suggest you discuss the matter with your labor attorney BEFORE you take the action. This area of employment law has just gotten a bit more difficult.

Care in the planning is well advised prior to implementing any action against workers' compensation claimants.

Diversity Includes Disability

From the President's Committee on Employment of People with Disabilities

Workforce diversity has become a major management strategy for many employers in the 1990's because it makes good business sense. A diverse workforce gives companies a competitive advantage by enabling them to better meet the needs of their customers, successfully compete in the global marketplace, and hire from an expanded labor pool.

Managing diversity involves the creation of an open, supportive, and responsive organization in which diversity is acknowledged and valued. Diversity is defined as all of the ways in which we differ. Some of these dimensions are race, gender, age, language, physical characteristics, disability, religion, sexual orientation, and other differences irrelevant to capacity to perform a job.

America's workforce is changing and rapidly growing more diverse. Over the next few decades, the largest percentage of new growth will be composed of women, ethnic minorities, and immigrants. The number of employees with disabilities will also increase. The current generation of Americans with disabilities is well prepared to be tapped for the job market and able to provide an added solution for the labor shortages facing American business.

People with disabilities are the nation's largest minority, and the only one that any person can join at any time. If you do not currently have a disability, you have about a 20% chance of becoming disabled at some point during your life. People with disabilities cross all racial, gender, educational, socioeconomic, and organizational lines.

Companies that include people with disabilities in their diversity programs increase their competitive advantage. People with disabilities add to the variety of viewpoints needed to be successful and bring effective solutions to today's business challenges. The American economy is made stronger when all segments of the population are included in the workforce and in the customer base.

For more information about the President's Committee on Employment of People with Disabilities, please use the following contact numbers:
Voice: 202-376-6200
FAX: 202-376-6205
TTY/TTD: 202-376-6219
Mailing address: 1331 F Street NW, Suite 300, Washington, DC 20004
Web site: http://pcepd.gov/

OFCCP Begins New Compliance Checks

Federal regulations changed last year and now permit the Office of Federal Contract Compliance Programs (OFCCP) to conduct Compliance Evaluations in a four-tiered process. The agency has begun implementation of those new reviews as of September, 1998. There was no announcement made to the general contractor community, however. OFCCP simply began issuing letters to specific contractors saying they will be receiving visits to inspect employer records. One OFCCP official told us that the agency was hoping to have information about its implementation available on its internet site before visits commenced, but that effort had been delayed.

Shirley Wilcher, National Director of the OFCCP, recently issued OFCCP Directive Number 227 to all OFCCP field offices instructing them to begin the compliance checks. In the scheduling letter sent to contractors the enforcement group is indicating its intent in reviewing three types of records:
1. Report of results from the previous year's affirmative action program.
2. Examples of current job advertisements.
3. Examples of accommodations made for persons with disabilities.

While regulations permit OFCCP officials access to such information with only three days notice, most scheduling letters have been sent about two weeks in advance of the visit date.

Each compliance check should take about 30 minutes. The same OFFCP official we spoke with indicated the agency wants each Compliance Officer assigned to conduct these checks to complete four appointments per day. If successful, this would dramatically increase the number of contractor establishments visited each year.

Compliance Officers are not permitted to remove any contractor documents from the premises during a Compliance Check. If deficiencies are found, notes will be made and those deficiencies addressed in the Compliance Check Closure Letter sent to the contractor. The agency may follow up with a more detailed level of review at a later date. That would require notification in the form of another scheduling letter to the contractor.

OFCCP Merges Regions 9 & 10

As part of a continuing cost control effort, the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) has merged its Seattle, Washington-based Region 10 operations into Region 9, which is based in San Francisco. Helen H. Haase, OFCCP Regional Director in San Francisco now has responsibility for the entire west coast, Hawaii, Guam and other Pacific Ocean territories.

Why Contractors Have Problems with the OFCCP During Compliance Audits

From August 19-22 employers from around the country met with senior managers from the Office of Federal Contract Compliance Programs (OFCCP). The Atlanta, GA gathering marked the annual meeting of the National Industry Liaison Group organization.

During the session, Regional Directors from the agency provided insight into the reasons federal contractors have difficulty during compliance audits.

Halcolm Holliman, who heads OFCCP's Region V in Chicago, said one major reason contractors get into trouble with the regulations is because they fail to use the required self-audit, monitoring systems, and internal "tester" programs. He encouraged contractors to conduct their own self-analysis that includes inspection for patterns and practice of employment discrimination. Also important inspection items are compensation programs and analysis of programs designed to attract minorities, with an eye to determining if those programs truly represent good faith efforts. Monitoring programs should include review of supervisor employment decisions to be sure those decisions are properly made and properly documented. He pointed out that many employers use internal testing programs to determine the level of their customer service programs. He said they should do the same type of testing of their employment programs.

Helene H. Haase, head of the agency's Region IX in San Francisco, said faulty application procedures cause a great deal of trouble for contractors. Relying on a "word of mouth" recruiting system to advertise job openings is usually not a good idea. Neither is trying to fill a job opening without having a list of particular requirements for matching job candidates to job requirements. Another example of poor application procedures she pointed out involves having appropriate job selection criteria, but lacking the safeguards to ensure they are being implemented.

All the Regional Directors agreed that when contractor organizations get into trouble with their agency it is almost always because the key organizational leaders, including the CEO, have failed to make a strong commitment to equal employment opportunity and affirmative action.

Holliman said top management should link diversity efforts with business goals. He also said he believes EEO performance standards should exist for all senior managers and that bonuses should be tied to meeting EEO objectives.

What Is An Applicant? You're About to Find Out!

Up to this time, the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) has not had a published definition of "applicant." That is about to change, if Shirley Wilcher, OFCCP Director, has her way.

In 1978 the government published the Uniform Guidelines on Employee Selection Procedures. Parties to those guidelines included the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), the Department of Justice, and the federal Office of Personnel Management. These guidelines require federal contractors to analyze their selection processes to locate any potential adverse impact against women or minorities.

The Uniform Guidelines define "applicant" as someone who expresses interest in employment in accordance with the employer's procedures. Those procedures could include completing an employment application form, responding to an advertisement for an open position, responding to a job posting on the internet, or sending an unsolicited resume or email indicating an employment interest. Most employers have created definitions of "applicant" which included some requirement that the person be qualified for the position in question.

In her opening remarks to the National Industry Liaison Group (NILG) conference last month, Ms. Wilcher said she expects that her agency will issue new regulations which will formalize their current "working" definition of job applicant.

OFCCP's position is this: "A person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities." They say that such interest might be expressed orally, or by completing an application form. They plan to change the official directive when it is published to indicate that interest can also be expressed electronically over the Internet. It is clearly the intention of the OFCCP to force contractors to capture every single individual who sends in an unsolicited resume as a job applicant, BEFORE any consideration or inspection is made to determine if that person is qualified for a specific job opening.

However, the OFCCP has no current written policy. Each Regional office has been creating its own policy up to now. That, we believe, is a violation of the federal Administrative Procedure Act (APA) which requires government agencies to follow formal procedures in developing policies. Those procedures require the agency to permit public comment and consideration before any policies are finalized and implemented. If we are correct, and the APA is applicable, OFCCP is required to first publish a proposed rule or formal policy. It must then invite and consider, and respond to, public input on the proposal before it can be officially implemented. In the case of defining "applicant," the OFCCP has done none of these things.

The Uniform Guidelines also address the question of "qualifications." Since 1978, this guidance has been used by employers to implement their Equal Employment Opportunity programs and guide development and implementation of selection systems. "Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications..." (41 CFR 60-3.2C) Until now, we have advised our clients to only consider qualified persons as "applicants" for purposes of disparate impact testing.

During her remarks at NILG, Ms. Wilcher told conference participants not to pay any attention to advice from "some consultants" who tell their clients to count only qualified applicants as part of the selection pool. She said, "I think you may be wasting your time, not to mention your money. With all due respect to the consultants...talk to us about what an 'applicant' is."

Many employer representatives at the conference were concerned and upset by Ms. Wilcher's comments. Some have called the OFCCP approach "heavy handed." To consider unqualified people as applicants for affirmative action and disparate impact testing seems to be a violation of basic equal employment opportunity principles. Yet, there doesn't appear to be any single voice speaking for federal contractors who are subject to these enforcement activities.

For now, federal contractors had better heed the warning from Ms. Wilcher if they wish to avoid conciliation agreements on this point. She is directing her agency to hold contractors accountable for collecting demographic data on ***ALL*** individuals who express an interest in employment. You can expect that revised regulations will be published sometime before the end of this year. And, don't forget that you must now retain all these data, files, papers, folders, letters, applications, resumes, email and internet responses, etc. for a minimum of two years. That includes any expression of interest in employment from anyone, whether qualified or not. You might as well have it if you are going to be held accountable for using it in disparate impact testing.

In a related, but separate, issue the OFCCP has sent its proposal to the White House Office of Management and Budget (OMB) seeking authority to administratively impose dollar damages on federal contractors for violations of Title VII of the Civil Rights Act of 1964.

Following approval by the OMB, the proposal would be published in the Federal Register as a public notice. At that point, a period time will be designated during which the public may comment on the request. Federal contractors would be well advised to keep a close eye on these processes if they wish to share their views with the Department of Labor on this issue. The focus of this effort is primarily on equal pay issues which were highlighted earlier in the year by Vice President Al Gore at a White House ceremony on Equal Pay Day.

We may have a "kinder and gentler" Internal Revenue Service (IRS), but the canine teeth at OFCCP are growing longer by the month.

Some Local Changes Around the Country

Massachusetts has passed, and acting Governor Paul Celluci has signed, a new law that increases criminal penalties for wage law violations. The same legislation (H. 5746) permits the state's attorney general to file civil suits against violators. First time violators of overtime or prevailing wage requirements could be facing fines of up to $25,000 if they are determined to have purposely avoided legal requirements. The attorney general is now authorized to issue citations to violators. Those can carry penalties from $7,500 to $15,000 for first time offenders.

In Chicago, the City Council has enacted a new minimum wage of $7.60 per hour which will be implemented on January 1, 1999. It will apply to all City employees, and all contractors or subcontractors of the City who have 25 or more full-time employees. Non-profits are exempt. If you have contracts with the City of Chicago, you should be talking with your advisors about whether or not you will have to comply with this new pay requirement when the new year arrives.

P&G Once Again "Women-Friendly"

A Wall Street Journal story by Tara Parker-Pope on September 9, 1998, tells of a major turnaround in retention of women among the senior ranks of Procter & Gamble Co.

To understand the situation as it has evolved, one must first understand that the culture at Procter & Gamble (P&G) is exceptionally strong. It is known as the "Procter Way." Career advancement at the mega-company is strictly "up or out." The company promotes only from within its own ranks. It does not hire middle managers (or even senior managers) from outside the way its competitors like Colgate-Palmolive Co. and Philip Morris Co. do. There is a constant push for conformity and sameness. Training is accomplished at the P&G College. Memos are written in a proscribed P&G style. "Employees are expected to have facts and data at their fingertips -- opinions and intuition are frowned upon."

A 1991 study of employee turnover at P&G shocked some of the company's senior executives. Fully two of every three good performers who quit the company were women. Because it didn't (and doesn't) recruit from outside, retention is a critical issue. There were few women with families moving up in the organization.

A Female Retention Task Force was created in 1992 in the wake of the study results. It got the support of senior executives, all of whom were men.

In 1993, Ms. Deborah Henretta joined the task force. At the time she was Marketing Director for Tide. She altered the task force, including marketing personnel from all sectors of the corporation. Her goal was to apply the same brand-management principles to the issue of retaining women as she had used in turning around the sales of her laundry soap brand. The group's name was changed to...Advancement of Women Task Force. The group did some research with women managers who had left P&G. Of the 50 they talked with, only two had left the workforce. Others had moved to high-stress, high-profile jobs at other organizations. Many of those were "surprised" to learn that P&G considered them a "regretted loss."

Culture became the clear reason for a dwindling number of women among management.

One new program the task force created was "Mentor Up" in which junior women "mentored" senior men on issues affecting women. Culture change was going to be made one manager -- and one man -- at a time.

Then the task force repackaged family-friendly benefits already offered by the company, but which many workers didn't know about. Those included provisions for breast feeding after returning to work and flexible work schedules for employees with pre-school children. The task force applied more marketing techniques and created employee information videos and internal ad campaigns to convince women they could succeed at P&G.

Today, the efforts have paid off. "The exodus of women has stopped and is now on par with that of men, and internal P&G surveys show women's job satisfaction is up 25% over 1994.

In 1996, the company's highest-ranking woman, senior vice president Charlotte Otto, 45, became the first woman on P&G's executive committee. Women now represent 31% of general managers. They hold 41% of Assistant Brand Manager jobs, 46% of Brand Manager jobs, and 35% or Marketing Director jobs.

This year, Catalyst, a women's advocacy group based in New York, singled out P&G as one of the country's best companies for promoting women.

At a time when many companies continue to struggle with development and promotion of women and minorities, P&G's strategy offers instruction about how an extremely insular corporate culture can start to foster diversity from within.

A Gentle Word on Behalf of Our Business

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