What employers can (and can’t) do to protect you

Employers must walk a fine line in warning workers about possible threats from disgruntled former employees like Vester Flanagan, who shot two TV news reporters in Roanoke, Va.

An employer who has a reasonable expectation that an employee may be violent, yet fails to act, could find itself liable if that employee lashes out, legal experts told The Indianapolis Star. But without such knowledge, there is often little a company can do.

And states have different restrictions on what kind of personal information can be released.

As details continued to emerge following Wednesday’s horrific on-air shooting, employment attorneys told The Star there appeared to be little WDBJ-TV could have done to warn employees about the danger presented by Flanagan, a former on-air personality who went by the name Bryce Williams.

Flanagan reportedly had been fired two years earlier. In an apparent suicide note, he discussed disgruntlement with the station, his admiration for the 2007 Virginia Tech campus shootings and his internal anger building into a “human powder keg.”

“I don’t know that at the time they hired him they knew he was dangerous,” said Indianapolis employment attorney Robert S. Rifken. “I understand that this guy was terminated, but people get fired every day. Just because someone is fired doesn’t make the employer liable if that individual comes back and takes severe action.”

But that does happen. In 2013, there were 397 workplace homicides and 270 suicides among the 4,405 fatal work injuries in the United States, according to the Bureau of Labor Statistics’ most recent data.

So when does an employer become liable for workplace violence by current or former employees? What steps can and should employers take to protect their workers in those cases?

Each state’s laws can differ. In 2008, the Indiana Court of Appeals ruled in favor of Aris, a company that supplies traffic controllers to contractors, after one of its employees murdered two people.

Frederick M. Baer had several felony convictions for murder on his record when Aris hired him in 2004. He was later found guilty of leaving a job site in Madison County to kill two people, Cory and Jenna Clark.

The Clarks’ estate sued Aris for negligent hiring. The court, though, essentially ruled Baer’s job did not put him into personal contact with the Clarks or other citizens, that his murder of them had nothing to do with his past convictions or the scope of his job.

The court, though, cited a 1991 case in which American Painting Co. was found negligent after hiring a man named Robert Hicks.

Before his hiring, he had committed a burglary, theft and arson at the apartment of a former girlfriend. After being hired, Hicks burglarized and set fire to a customer’s home. The company was found liable in a subsequent lawsuit.

“The company simply ignored (the earlier incident) or failed to do a proper background check,” Rifken said. “That is not what happened in Virginia, that I’m aware of.”

Employment attorney John H. Haskins said employers do have options if they have reason to believe an employee is a threat. They can have the employee undergo a psychological evaluation. And since Indiana is an at-will state, they also can simply fire the employee. They can also call the police to warn about a potential danger.

He said employers who are reporting information about a potential threat can’t disclose a mental condition due to the Americans With Disabilities Act. But they can simply describe an employee’s behavior as threatening.

“You could make an announcement that has nothing to do with their mental stability,” Haskins said, “but say that we dismissed this individual because of our concern for safety at the workplace.”

States also have their own laws. In Indiana, company human resources departments can directly share information with one another about otherwise confidential employee records. While they can’t share a medical diagnosis due to the Americans With Disabilities Act, they can share documented symptoms — like hallucinations that led to threatening behavior.

“The only right to privacy that you really have an expectation of is your medical,” Haskins said.

Haskins said workplaces can and do experience violence. Usually, though, he said it’s a fight between two people that results in the firing of one or both. And it usually ends there.

But, he believes, there’s little a company can do — even a restraining order or police monitoring — to stop a determined shooter such as Flanagan.

“It’s difficult to stop someone who is that determined,” he said.

Workplace violence is an issue local companies know they may face. Eli Lilly & Co. has a standing threat-assessment team to avoid workplace violence, which includes security, human resources and psychologists.

The company encourages employees to report threats or threatening situations, either through a web page or a 24-hour hotline.

“We can’t solve society’s ills, but we have long-established procedures in place to keep our people and facilities as safe as possible,” said Robert Casey, chief of global security at Lilly.

Call Star reporter Chris Sikich at (317) 444-6036. Follow him on Twitter: @ChrisSikichand at Facebook/chris.sikich.