University of Memphis Law Review
Note, 28 (1997): 281.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain
a back issue.
WEAPONS IN THE WORKPLACE: THE EFFECT OF TENNESSEE'S CONCEALED WEAPONS STATUTE ON EMPLOYER LIABILITY
Tanja Lueck ThompsonCopyright © 1997 University of Memphis Law Review & Tanja Lueck Thompson
I. Introduction ............................................................. 281
II. The Epidemic of Workplace Violence ..................... 282
III. Theories of Employer Liability ................................ 286
A. Respondeat Superior ..................................... 286
B. Negligent Hiring, Supervision, and Retention ... 287
C. Occupational Safety and Health Act ............... 291
IV. Tennessee's Concealed Weapons Statutes ............. 293
V. Methods of Prevention ............................................ 298
A. No-Weapons Policies and Posting ................. 298
B. Searches and Surveillance .............................. 300
C. Background and Arrest/Conviction Checks ... 301
D. Psychological and Drug Testing ..................... 303
E. Stress and Crisis Management ....................... 307
VI. Conclusion ........................................................... 308
I. Introduction
The chain link fence standing guard outside local businesses now bears a haunting sign readable at one-hundred feet:
CONCEALED WEAPONS ARE PROHIBITED ON THE EMPLOYMENT PREMISES VIOLATORS WILL BE PROSECUTED
The ManagementIn Tennessee, as throughout the nation, workplace violence is a growing epidemic; yet thirty-one states now have statutes decriminalizing the act of carrying concealed handguns given the requisite permit. Licensed citizens of these states carry guns into private businesses every day. Employers are fighting back, fighting to save lives, and fighting to stay out of court.
This Note discusses the epidemic of workplace violence and the effect of Tennessee's new concealed weapons statute on employer liability. Part II will assess the scope of the problem. [1] Part III will examine the theories of employer liability. [2] Part IV will introduce the reader to the Tennessee statutes. [3] Part V will suggest possible preventative measures for the employer, including bans on weapons in the workplace. [4] Part VI will conclude by summarizing the main points of the Note and presenting the Author's opinions. [5]
II. The Epidemic of Workplace Violence
Despite the fact that workplace violence is becoming an epidemic, American "employers generally view violence as a product of the streets, not the workplace." [6] Statistics indicate that the rate of workplace homicide continues to increase each year. [7] From 1980 to 1989, 7603 employees were murdered by co-workers or by strangers while on the job, approximately 760 individuals per year. [8] In 1994, 1071 individuals were murdered at work. [9] During this entire period, workplace homicide continued to be the leading cause of death for women in the workplace and the third leading cause for men. [10]
Sociologists, consultants, and others offer numerous explanations for the dramatic increase in homicides and violence in the workplace. Many point to the increase in violence in society generally derived from the greater availability of handguns, [11] the glamorization of violence by the media, the increasing prevalence of drugs and alcohol in society, [12] the diminished value of the family unit and effective teaching, and a legal system that fails to effectively deter and punish violent criminals. [13] Yet, perhaps the most often cited explanation for the rise in workplace violence is the vast economic changes in the American workplace during the past decade. [14]
Some researchers have attempted to devise a standard profile of the workplace violence perpetrator. The alleged perpetrator is said to be a white male, in his thirties or forties, with no record of violent behavior. [15] Often the perpetrator is preoccupied with weapons, is a loner or withdrawn individual with a history of interpersonal conflicts and family or marital strife, has a military background, tends to externalize blame, has a history of substance abuse, is an angry person who has requested psychological assistance in the past, suffers from paranoid disorders, and tends to link his self-esteem and self-identity to his employment more than the average individual. [16]
In using such a profile, employers would need to perform two basic tasks: (1) evaluate an individual's "mental stability or tendency toward violence," and (2) "on the basis of that evaluation," attempt to predict the individual's future behavior. [17] Despite the possible utility of developing such profiles, human resource professionals warn against it. These professionals identify several key problems with issuing profiles to management personnel: (1) the profiles have the potential of excluding too many individuals, and, therefore, many predictions may indeed be wrong; (2) the profile of a murderer may differ from the profile of an individual with a propensity to commit other crimes in the workplace such as rape or assault and battery; and (3) profiles may be based on impermissible stereotypes [18] resulting in potential employer liability for adverse employment decisions based on a profile. [19] Thus, rather than using employee profiles, some professionals indicate that management should simply assume every employee is potentially dangerous. [20]
Studies have shown that the potential effects of violence perpetrated by these offenders are vast, including "direct physical harm, psychological trauma, property damage or theft, higher employee absenteeism rates, labor- management conflict, increased turnover in personnel, diversion of management resources, production losses, litigation costs, increased security costs, increased workers' compensation costs, (and) increased personnel costs." [21] While the high costs of workplace violence have induced some employers to institute safety measures to protect their workplaces, others simply rely on workers' compensation insurance to compensate victims and their families. [22] Despite the exclusivity principle found in the Tennessee workers' compensation statute, [23] workers' compensation insurance will not always be the exclusive remedy for the victims of workplace violence. Victims of workplace violence are not satisfied with small settlements or the punishment of perpetrators; they want someone to pay, and they are looking to their employers.
III. Theories of Employer Liability
A. Respondeat Superior
The familiar common law doctrine of respondeat superior [24] is a good starting place for examining employer liability for co-employee violence in the workplace. Under this theory, an employer is vicariously liable for the tortious acts his employees commit within the scope of employment. [25] Because an employee is an agent of the employer, the employer incurs derivative liability for harm the employee causes third parties. [26] The doctrine is limited in that the act generally must (1) fall within the job description of the employee, (2) occur within the authorized time and space of employment, and (3) be motivated by an intent to fulfill the objectives of the employment or otherwise serve the master. [27] The doctrine also has been extended to cover intentional injuries within the scope of employment. [28] Nevertheless, most violent conduct will fall outside the scope of employment. Thus, an employer often may be able to evade liability under this theory unless the incidents of workplace violence can be traced to the employer's own negligence. [29]
B. Negligent Hiring, Supervision, and Retention
Employer liability under a theory of negligent hiring is more expansive than liability predicated upon a theory of respondeat superior in that it covers negligent acts committed by the employer himself, not derived from an employee's negligent or intentional acts and, thus, not necessarily within the scope of employment. [30] This theory is derived from the common law fellow servant doctrine "whereby the master is not liable for injuries caused by a fellow servant so long as the employer exercised care in the selection of its servants." [31] Initially intended to protect fellow employees from harming one another, this theory has been expanded to protect members of the public who come in contact with employees. [32] The tort is "based on the principle that a person conducting an activity through employees is liable for harm resulting from negligent conduct in the employment of improper persons or instrumentalities in the work involving risk of harm to others." [33] Under this theory a plaintiff must show the following:
(1) the employee was unfit for hiring . . . ; (2) the employer knew or should have known that the employee was unfit; (3) the employer could foresee that the employee, through his employment, would come into contact with the plaintiff under circumstances creating a risk of danger to the plaintiff; (4) the plaintiff was injured; and (5) the employer's negligence was the proximate cause of the injury. [34]
The concepts of negligent retention and supervision follow directly from that of negligent hiring. [35] The analysis differs only in that once a potentially dangerous individual has worked for an employer for some amount of time, the employer may be held liable if it knew or should have known of the employee's violent propensities but nevertheless retained the employee in a position in which he could harm his co-workers or members of the public with whom he came in contact. If an employer has actual or constructive knowledge of the risk, the employer has a duty to protect those individuals coming in contact with the dangerous employee by either disciplining or terminating the individual. [36]
Tennessee first recognized the tort of negligent hiring in Wishone v. Yellow Cab Co. [37] In Wishone, the plaintiff sued the defendant cab company for injuries sustained when the driver/employee had an epileptic seizure. The Tennessee Court of Appeals stated that an "employer must exercise a degree of care commensurate with the nature and danger of the business in which he is engaged." [38] The cab company was found liable for the personal injuries of the plaintiff. [39]
In recent years, the Tennessee courts have revisited the tort of negligent hiring. In the 1992 case of Doe v. Linder Construction Co., [40] the plaintiff, a purchaser of a home, was raped by Samuel Carpenter, an employee of the builder, Linder Construction Company. [41] The plaintiff sued the builder, among others, under several negligence theories. [42] Based on a determination that evidence of Carpenter's "irresponsible character" was not "shown to be probative of a propensity to commit violent crimes against property or persons," [43] a majority of the court concluded that the rape was not foreseeable [44] and granted the defendant's motion for summary judgment. [45]
The dissent contended, however, that the court should have considered the plaintiff's claim under a theory of negligent hiring. [46] Noting an exception to the general rule of respondeat superior, the dissent stated that employers may be held liable for the criminal acts of their employees when the employer was negligent in hiring or supervising dangerous employees. [47] Moreover, the dissent observed that "(w)hile courts have been reluctant to place a burden of pre-employment investigation on employers in every case, they have held employers to a higher standard in the employment of workers who have access to private residences." [48] The dissent ultimately concluded that while liability was not entirely contingent upon Linder's failure to perform background checks on its employees, the question of Linder's negligence should have been submitted to the jury. [49]
In 1994, the Tennessee Court of Appeals again considered a plaintiff's action for negligent hiring. In Long v. Brookside Manor, [50] a nursing home resident brought a negligent hiring action against the home based on an assault by an employee. The defendant, Brookside Manor, had failed to perform a thorough pre-employment background check on the assailant before hiring the individual in violation of a regulation requiring such investigations when employing nursing personnel. [51] The Tennessee Court of Appeals, in concluding that Brookside's violation of the regulation was not the proximate cause of the plaintiff's injuries, noted that no evidence existed in the record to show that if the background check had been performed it "would have put Brookside on notice that (the employee) would or might abuse a nursing home patient." [52] Therefore, although the court did not deem the defendant's failure to perform a background check determinative, the opinion suggests the court might have reached a different result had the plaintiff been able to introduce evidence that the assailant had a history of violence. [53]
One year later, the court of appeals faced a similar situation in Gates v. McQuiddy Office Products. [54] In Gates, the plaintiffs brought an action against McQuiddy Office Products under theories of negligent hiring and supervision arising from a shooting and an attempted robbery by McQuiddy's employee at the plaintiffs' place of business. [55] The employee/assailant, alleged to have a history of criminal behavior, gained access to plaintiffs' offices while delivering furniture for the defendant. [56] The plaintiffs argued that the defendant was guilty of negligent hiring and supervision because the defendant had notice of the assailant's criminal history and failed to act. [57] Nevertheless, the seemingly lenient court stated that
an action for negligent hiring requires something more than a showing of past criminal conduct. There must be (1) evidence of unfitness for the particular job, (2) evidence that the applicant for employment, if hired, would pose an unreasonable risk to others, (or) (3) evidence that the prospective employee knew or should have known that the historical criminality of the applicant would likely be repetitive. [58]
The court further stated that "depending on the particular employment and unless put on notice, an employer has no duty to check every job applicant's background." [59] Still, the court was quick to point out that the assailant's references had been checked, and the assailant had represented to his employer that he had no felony convictions. [60]
The Tennessee courts seem disinclined to impose a duty on employers to protect third parties from unforeseeable criminal acts of their employees. Yet, the cases discussed above do not reveal evidence of egregious past violent conduct on behalf of the assailants. Perhaps, if a truly violent individual slips through an employer's cursory background checks, the courts will be more inclined to find for the plaintiff. Nevertheless, to evade liability under a theory of negligent hiring, the prudent employer should perform some level of investigation and background checks. [61] The requisite intensity and thoroughness of an investigation when hiring new employees will necessarily vary with the job and the employer and ultimately with the courts.
C. Occupational Safety and Health Act
Another theory of liability may be premised on the federal Occupational Safety and Health Act (OSHA), [62] enacted in 1970 to protect employees from hazardous conditions in the workplace. [63] Since 1993, OSHA's traditional focus has been expanded to some degree to include actions against employers for failing to protect their employees against workplace violence. [64] These actions have their basis in the general duty clause of OSHA, which provides that "(e)ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." [65] In order to show a violation of this duty, the Secretary of Labor must prove the following: "(1) (t)he employer failed to render its workplace free of a hazard; (2) (t)he hazard was 'recognized'; and, (3) (t)he hazard caused or was likely to cause death or serious physical harm." [66]
The principal method of OSHA enforcement involves a process of routine business inspections with civil sanctions imposed on businesses that fail to comply with the requisite standards. [67] More recently, in a few egregious cases, criminal sanctions have also been imposed. [68] Thus, an employer who is aware of threats or knows of potential dangers may be required to protect its employees if violence occurs.
IV. Tennessee's Concealed Weapons Statutes
In Tennessee, as of October 1, 1996, any twenty-one year-old resident may apply for a permit from the State Safety Department to carry a handgun pursuant to section 39-17-1351 of the Tennessee Code. [69] An applicant must disclose the following information:
(1) Full legal name and any aliases;
(2) Addresses for the last five (5) years;
(3) Date of birth;
(4) Social security number;
(5) Physical description (height, weight, race, sex, hair color and eye color);
(6) That the applicant has not been convicted of a criminal offense punishable for a term exceeding one (1) year which does not include any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulations of business practices, or;
(7) That the applicant is not currently under indictment or information for any criminal offense punishable by a term exceeding one (1) year which does not include any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulations of business practices;
(8) That the applicant is not currently subject to any order of protection and, if so, the applicant shall provide a copy of such order;
(9) That the applicant is not a fugitive from justice;
(10) That the applicant is not an unlawful user of or addicted to alcohol or any controlled substance and the applicant has not been a patient in a rehabilitation program or hospitalized for alcohol or controlled substance abuse or addiction within ten (10) years from the date of application;
(11) That the applicant has not been convicted of the offense of driving under the influence of an intoxicant in this or any other state two (2) or more times within ten (10) years from the date of application and that none of such convictions has occurred within five (5) years from the date of application or renewal;
(12) That the applicant has not been adjudicated as a mental defective; has not been committed to or hospitalized in a mental institution; has not had a court appoint a conservator for the applicant by reason of a mental defect; has not been judicially determined to be disabled by reason of mental illness, developmental disability or other mental incapacity; and has not, within seven (7) years from the date of application, been found by a court to pose an immediate substantial likelihood of serious harm, as defined in § 33- 6-104, because of mental illness;
(13) That the applicant is not an alien and is not illegally or unlawfully in the United States;
(14) That the applicant has not been discharged from the Armed Forces under dishonorable conditions;
(15) That the applicant has not renounced such applicant's United States citizenship;
(16) That the applicant has not been convicted of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(33);
(17) That the applicant is not receiving social security disability benefits by reason of alcohol dependence, drug dependence or mental disability; and
(18) That the applicant has not been convicted of the offense of stalking. [70]
The department will deny an individual's application
if it determines from information contained in the criminal history record checks conducted by the Tennessee and federal bureaus of investigation pursuant to subsection (h), or from other information that comes to the attention of the department, that the applicant does not meet the eligibility requirements of this section. The department shall not be required to confirm the applicant's eligibility for a permit beyond the information received from the Tennessee and federal bureaus of investigation and the sheriffs, if any. [71]
Nevertheless, the department will not deny an application if:
(1) The existence of any arrest or other records concerning the applicant for any indictment, charge or warrant have been judicially or administratively expunged; or
(2) An applicant's conviction has been set aside by a court of competent jurisdiction; or
(3) The applicant, who was rendered infamous or deprived of the rights of citizenship by judgment of any state or federal court, has had his or her full rights of citizenship duly restored pursuant to procedures set forth within title 40, chapter 29, or other federal or state law; provided, however, the provisions of this subdivision shall not apply to any person who has been convicted of burglary, any felony offense involving violence or use of a firearm or any felony drug offense involving a Schedule I, II, III, IV or V controlled substance. If the applicant has been convicted of a felony drug offense involving a Schedule VI controlled substance, the provisions of this subdivision shall not apply if such offense occurred within ten (10) years of the date of application or renewal. [72]
Significantly, like laws adopted in Texas and other states, [73] the new law does not restrict any previously established rights of landowners or employers. [74] Not only does the statute not prohibit employers from banning weapons on their property, the statute explicitly allows employers to establish such bans. [75] An individual who acquires a concealed weapon permit does not gain any new rights or privileges under the statute; the statute "merely decriminalizes the possession of a handgun in certain situations where possession would otherwise be unlawful." [76] Thus, an employer is not precluded from establishing a gun free workplace. [77]
Nationwide statistics indicate that employers' fears as a result of the new right to carry laws in many states may not be too great given that only one to two percent of the citizenry is expected to apply for handgun permits in those states. [78] Yet, the requests for applications in Tennessee poured in at a rate of four-thousand per month during the first several months after the new law went into effect. [79] Moreover, the National Rifle Association reported that the demand by Tennessee citizens for handgun permits exceeds that in almost every other state. [80]
The statute also prohibits licensing those individuals whom most employers fear will wreak havoc in their workplaces by requiring thorough background checks into individuals applying for a permit. [81] Nevertheless, Tennessee sheriffs conducting these investigations, especially those in large cities such as Memphis and Nashville, are backlogged with applications and are unable to verify much of the information required by the new state law. [82] Sources indicate that it takes nine months to process a permit application, and even when processed, there is no guarantee that criminals, drug addicts, or the mentally ill will have been prevented from acquiring permits. [83] As Judiciary Committee chairman, Frank Buck, anxiously acknowledges, "(t)hirty percent (are) falling through the cracks--that just blows my mind." [84] The chairman's comment followed a report by the Tennessee Bureau of Investigation that concluded that as many as thirty percent of the felons convicted in Tennessee do not appear on the computer database used by the sheriff's departments in their searches. [85] Thus, even assuming that the requisite background search is performed, many felons may be approved for handgun permits in Tennessee. [86] In addition, the Shelby County Sheriff's Department indicates that some of the other information required by the new law, such as mental history or history of drug and alcohol abuse, is "virtually impossible to obtain." [87] Thus, employers should not be falsely secure in the belief that the state will weed out all unsuitable applicants.
An individual who applies for a permit is also required to attend a handgun safety course before being licensed. [88] This course, however, is not designed to make someone an expert marksman in eight hours, nor is it designed to eliminate an individual's fear about using deadly force. Therefore, employers faced with the realities of the new law should attempt to prevent workplace violence with any cost-effective and efficient means available.
V. Methods of Prevention
A. No-Weapons Policies and Posting
"With 26 states now allowing citizens to be licensed to carry concealed weapons, more businesses are being forced to weigh those rights against the safety of their employees and customers." [89] Many businesses are banning weapons on their employment premises. [90] Tennessee's statute reserves the employer's right to ban concealed weapons on the employment premises, but requires that the employer post, announce, or "otherwise notice" its prohibition. [91] The statute states that an employer is "authorized to prohibit the possession of weapons by employees . . . on premises owned, operated or managed by such . . . entity. Notice of such prohibition thereunder shall be posted or otherwise noticed to all affected employees." [92] The posting or announcement is designed to give notice to employees that employment and entry onto the business premises is conditioned upon compliance with the no-weapons policy. [93] In addition, the statute allows the employer to prohibit non-employees from bringing concealed weapons onto the employment premises. The statute reads in pertinent part:
An individual, corporation, business entity or governmental entity or agent thereof is authorized to prohibit possession of weapons by any person . . . at meetings conducted by, or on premises owned, operated, managed or under control of such individual, corporation, business entity or governmental entity. Notice of such prohibition shall be posted or announced. [94]
Tennessee employers should consider implementing no-weapons policies under the new statute. [95] These policies should apply not only to employees, but also to applicants and invitees. The policies should be broad in focus incorporating all employment structures including those of subsidiaries and affiliates and also parking lots and employee vehicles in those lots. [96] For purposes of clarity, the policy should contain a definition section defining such terms as "employees," "weapons," "carrying," and "possessing."
To be an effective deterrent against liability, enforcement of any policies that are implemented is crucial, and employers must consistently discipline or terminate those employees who violate the policies. In addition, the policy must apply equally to all employees and all employees must receive adequate notice of the policy. An employer who enacts a no-weapons policy and then fails to enforce and implement it properly may indeed aid a victim in proving that the employer's negligence was the proximate cause of his injury.
Critics of these bans, including the National Rifle Association and sponsors of the states' legislation, insist that employers should not inhibit a citizen's right to self-defense under the new laws and the Constitution. These critics anticipate constitutional and statutory challenges to the prohibitions. The Second Amendment right to keep and bear arms, however, has never been extended to include carrying weapons onto a private employer's premises against the property owner's wishes. Rather, the Second Amendment only guarantees a citizen the right to bear arms for the purpose of militia warfare or for the general defense of the community. [97]
Critics also claim, and rightly so, that a no-weapons policy will do little to deter third parties from committing unforeseen criminal acts. [98] Nevertheless, ridding the workplace of excess weapons is a desirable goal. Moreover, the Tennessee legislature has explicitly reserved the right of Tennessee employers to ban weapons on their private property, [99] and until the judiciary or the legislature indicates otherwise, it remains in the individual employer's best interest to ban weapons in the workplace.
B. Searches and Surveillance
Although searches and surveillance may not promote productivity or increase employee morale in the workplace, they may be two of the best ways to combat workplace violence. Moreover, employees who truly fear for their safety may indeed be receptive to the use of such security measures. [100]
The use of metal detectors, although clearly the most effective way of enforcing no-weapons policies, does not appeal to most employers. Metal detectors are both impractical and too costly for many business owners, while others simply view them as an unnecessary invasion of employee privacy. Still, employers may wish to include a provision in their no-weapons policy authorizing searches at work. [101] There must be clear notice of this type of policy, and employers should ask employees to sign a consent form agreeing to such searches as a condition of employment to avoid claims for invasion of privacy. [102] In addition, employers should inform employees that desks, lockers, etc. are the property of the employer and that personal locks are prohibited.
C. Background and Arrest/Conviction Checks
To prevent successful negligent hiring claims, employers may wish to conduct background or arrest/conviction checks of their applicants for employment. [103] When performing background checks, employers should contact the applicant's prior employers and references. Employers should ask applicants why they left their previous employment and, if possible, verify the response with the prior employer. Although a former employer will probably provide only a positive or neutral reference, a potential employer may be deemed negligent for failing to at least inquire as to an applicant's past history. [104] It is hopeful at least that a former employer will not misrepresent an individual's violent propensities. [105] The employer should also question any irregular gaps in the applicant's employment history. Such gaps may be indicative of discharge or possibly time spent incarcerated. In addition, an employer should obtain a release [106] from the applicant authorizing checks into prior employment records and any criminal records. [107]
The use of arrest and conviction checks is a relatively recent phenomenon. For many years, criminal histories were compiled in computer databases for use by state and local governments. [108] These records, which have in the past been used solely for criminal justice purposes, are now available in some states to private employers researching job applicants. [109] With the trend toward making these records public, [110] victims of workplace violence may in some instances use an employer's failure to search the records as an indication of employer negligence.
Pursuing criminal conviction checks in every instance may conflict with state policies that encourage the employment and rehabilitation of ex- convicts. [111] In addition, some courts have found for plaintiffs in discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII) [112] when employment decisions were based on arrest records. [113] Because statistics indicate that minorities are arrested at a higher rate than whites, [114] employers who choose to exclude applicants solely based on prior arrests may be found liable for discrimination through a disparate impact theory. [115] Furthermore, employers should not exclude any employees for convictions that are not job-related. [116]
D. Psychological and Drug Testing
Even with the dramatic increases in workplace violence and the potential utility of psychological testing, this type of preventative measure has received voluminous criticism from various interest groups, social scientists, and labor unions. [117] Employers using psychological testing attempt to predict human behavior and counterproductive work attitudes through personality-type examinations. "In order to explain or predict human behavior such as emotional instability or propensity toward violence, scientists have gathered data to assist them to formulate an explanation or prediction." [118]
Critics assert that the initial fallacy of this testing is its lack of effectiveness in predicting dangerous behavior. [119] Social scientists indicate that there exists a lack of comprehensive national data and an inadequate record by clinicians in accurately assessing the potential for workplace violence. [120] Law professor and psychologist John Monohan of the University of Virginia, stated that even under the best conditions psychologists and psychiatrists performing this type of testing "'are accurate in no more than one out of three predictions of violent behavior . . . over a several-year period among institutionalized populations that had both committed violence in the past and were diagnosed as mentally ill."' [121]
Perhaps the more significant fallacy of psychological and drug testing from an employer's point of view is the increased liability risk. Employers must be especially wary of actions for invasion of privacy when performing such tests. The Restatement (Second) of Torts defines the right of privacy as
the right to be free from the unwarranted appropriation or exploitation of one's personality; the right to be free from the publication of one's private affairs with which the public has no legitimate concern; and the right to be free from wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. [122]
Given the very personal and rather intrusive nature of some forms of psychological testing, an employer's decision to require such testing may lead to liability for invasion of privacy.
In addition to an action for invasion of privacy, employers who use psychological testing must also be aware of potential violations of the Americans with Disabilities Act of 1990 (ADA). [123] The ADA prohibits employment discrimination against a qualified individual [124] based on a disability. [125] Under the ADA, an employer may be held liable for discrimination for screening out applicants based on a disability such as a mental disorder. [126] In using psychological testing, employers should consider the following factors to determine whether the particular testing is deemed an impermissible pre-employment medical examination and, hence, discriminatory under the ADA: [127]
Whether the procedure or test is administered by, and whether the test results are interpreted by, a health care professional or someone trained by a health care professional;
Whether the procedure has been designed to reveal, or is being used by the employer to reveal, the existence, nature or severity of a disability or the subject's overall physical or psychological health;
Whether the procedure is invasive in nature;
Whether the procedure or test measures physiological or psychological responses, as opposed to an individual's performance of a task; (and)
Whether the procedure or test would normally be administered in a medical setting, and whether medical equipment is used to administer the test. [128]
Thus, although the ADA does not automatically ban psychological testing, [129] it will have to be evaluated in light of the above factors, and if the testing is designed to determine whether the individual has a protected disability, the testing will be prohibited. [130]
Therefore, an employer must walk a fine line between discovering violent propensities and probing into protected disabilities. The employer must show by compelling evidence that the otherwise qualified individual posed a "direct threat" [131] to the workplace. The ADA does not, however, prohibit using current drug or alcohol abuse as an employment criterion. [132] Given that the majority of violent crimes are committed by drug users, "pre-employment and course-of-employment drug and alcohol testing" are vital tools for combating workplace violence. [133]
E. Stress and Crisis Management
One study indicated that victims of workplace violence experienced "almost twice the rate of stress-related conditions such as depression, anger, insomnia, headaches, and ulcers." [134] In addition, there is much lower productivity and a much higher turnover rate among these individuals. [135] Employers should develop programs designed to aid employees, both victims and potential perpetrators, in coping with stress. Management should also be trained to help employees cope with the severe stress related to layoffs and corporate reorganization. Studies indicate that effective planning and training on how to handle separations and layoffs is key to reducing workplace violence. [136] Employers should make proper use of outplacement and employee-assistance programs in order to facilitate smooth transitions and to allow individuals affected by downsizing and reorganization to focus on future opportunities. [137]
In addition, management should encourage fellow employees to report incidents of potential violence or threatening behavior, [138] and employers should in turn act on these warnings. [139] Management should then conduct a prompt investigation of any incident reported. This investigation should include
interviewing the reporting party and obtaining the following information: (1) who made the threat; (2) who was the victim; (3) the specific language used; (4) any physical conduct by the threatening party; (5) names of other witnesses; (6) time and place where the threat or violent conduct occurred; (7) prior threats or violent conduct by the alleged perpetrator; and (8) any other information which will help ensure that the threat will not be carried out or that violent conduct will not occur. [140]
Some employers have formed threat-assessment teams designed to combat potential violence. These teams are comprised of human resources personnel, security personnel, medical personnel, employee assistance personnel, public relations personnel, and legal counsel. [141] The purpose of these teams is to "analyze potential problems, evaluate the firm's ability to respond, and draft policies to reduce the risks of violence." [142]
VI. Conclusion
By banning guns from the workplace, the rate of workplace homicide will likely decrease or, at least, remain the same. Despite studies indicating that offenders may be deterred by a weapon-carrying victim, this Author believes that the situations described by advocates for the new legislation, in which a licensed carrier will be able to defend himself and his co-workers from a gun- toting assailant, will remain a rare occurrence.
Contrary reports, nevertheless, deserve mention. A recent study reported by John R. Lott, Jr., the John M. Olin Law and Economics Fellow at the University of Chicago School of Law, indicates that right to carry laws may in fact deter violent crimes, including homicide. [143] Lott reports at least an eight- and-one-half percent decrease in the murder rate in states with right to carry laws. [144] The results are difficult to ignore, yet the key to Lott's findings does not seem to be that employees and citizens at-large will truly be able to counter an assailant's attack, but rather that an assailant will be deterred by his fear of the prospect of a gun-toting victim. The active defensive use of concealed weapons by innocent parties will probably remain a rarity. Therefore, an employer who fails to effectively ban concealed weapons in its place of employment must still fear the undeterred assailant and hope that if innocent employees are carrying their own weapons that they will not be afraid to effectuate deadly force and that their weapons will not be used against them or their co-workers. In the end, this Author believes that more guns usually mean more violence, or, at a minimum, more liability from an employer's standpoint.
Employment law is a highly regulated area, and Tennessee's new concealed weapons statute further muddies the already murky water of employer liability. Nevertheless, the statute should not obscure the basic premises that have already been established. An employer has a duty to provide his employees with a safe workplace and should continue to employ the preventative techniques previously set forth to avoid liability, and, more importantly, to prevent violence.
[1]. See infra notes 6-23 and accompanying text.
[2]. See infra notes 24-68 and accompanying text.
[3]. See infra notes 69-88 and accompanying text.
[4]. See infra notes 89-142 and accompanying text.
[5]. See infra notes 143-44 and accompanying text.
[6]. Ronald A. Gray & Teri Wood, Employees at Risk: Companies Obliged to Provide Safe Workplace, 212 N.Y.L.J. S1 (1994).
[7]. See National Inst. for Occupational Safety & Health, U.S. Dep't of Health & Hum. Servs., Fatal Injuries to Workers in the U.S., 1980-1989: A Decade of Surveillance (1993) (hereinafter NIOSH Survey).
[8]. See id.
[9]. See Commerce Clearing House, Inc., OSHA Compliance ae 15,697 (1993). Certain occupations have been identified as being at high risk for stranger homicide. Those occupations include taxicab drivers, law enforcement officers, hotel clerks, gas station employees, security guards, stock handlers, store owners/managers, and bartenders.
[10]. See NIOSH Survey, supra note 7.
[11]. Statistics indicate that seventy-five percent of workplace homicides are committed with firearms. See NIOSH Survey, supra note 7.
[12]. But cf. James Alan Fox, Mass Murder: America's Growing Menace (1985) (concluding that unlike typical homicides in the United States, drugs and alcohol are not implicated in workplace homicides).
[13]. See George Barford & Kaiwen Tseng, Psychological Tests and Work Place Violence--A Review, 68 Fla. B.J. 76 (1994); Gray & Wood, supra note 6. As reported daily in newspapers and on television, workplace violence is pervasive in society. See Carol J. Castaneda & Kevin Johnson, Employers on Guard for Violence: Attacks Arise with Stress, Expert Says, USA Today, Apr. 5, 1995, at 3A; Michael Ozurovich, Workplace Violence: A Civil Remedy for Accountability, The Sacramento Bee, June 25, 1995, at G2; Matthew Purdy, Workplace Murders Provoke Lawsuits and Better Security, N.Y. Times, Feb. 14, 1994, at A1; Jolie Solomon & Patricia King, Waging War in the Workplace, Newsweek, July 19, 1993, at 30.
[14]. See Barford & Tseng, supra note 13, at 76. Insecurity about job loss and demotion is a legitimate concern for American employees given that ten million managers have been terminated due to corporate downsizing and mergers during the last decade. See id. at 77 (citing Joseph A. Kinney, Breaking Point, The Workplace Violence Epidemic and What to Do About It, Nat'l Safe Workplace Inst., Sept. 1993, at 27); see also Kate Stone Lombardi, Efforts to Stem Violence in the Workplace, N.Y. Times, Feb. 13, 1994, S 13, at 1 (noting the sense of insecurity created by layoffs, both in laid-off workers and in "survivors").
[15]. See Barford & Tseng, supra note 13, at 77; Susan L. Pollet, Violence in the Workplace: Are Employers Legally Responsible?, 22 Westchester B.J. 133, 134 (1995).
[16]. See Barford & Tseng, supra note 13, at 77; Pollet, supra note 15, at 134.
[17]. Louis P. DiLorenzo & Darren J. Carroll, The Growing Menace: Violence in the Workplace, 67 N.Y. St. B.J. 24, 26 (1995).
[18]. For example, under the Americans with Disabilities Act of 1990 (ADA), an employer cannot exclude an applicant with violent propensities based on a disability or a perceived disability. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, S 101, 104 Stat. 327 (1990) (codified in scattered sections of 42 and 47 U.S.C.). By excluding applicants who appear violent or prone to violence due to erratic behavior or depression, employers might exclude individuals who are protected by the ADA. These individuals may not legitimately be excluded unless they pose a direct threat to the workplace. See infra notes 123-33 and accompanying text.
[19]. See DiLorenzo & Carroll, supra note 17, at 26; Jonathan A. Segal, When Charles Manson Comes to the Workplace: Violence in the Workplace, Legal Trends, HR Mag., June 1, 1994, at 33. An employer who bases its adverse employment decision on a profile must be prepared to back up the decision by showing that the applicant poses a direct threat to his co-workers. To avoid liability, the employer should determine that (1) the individual poses a significant risk of substantial harm; (2) the specific risk is identifiable; (3) the risk is current, not speculative or remote; (4) the assessment of the risk is based on objective medical or other evidence related to a particular individual; and (5) the employer has considered reasonable accommodations that would either eliminate or reduce the risk so as not to be a direct threat. See DiLorenzo & Carroll, supra note 17, at 26-27. Given this high burden for showing the legitimacy of the employer's decision, it appears that the use of profiling will not be a realistic option for most employers. If forced to engage in "individualized" analysis as suggested by these commentators, the entire purpose of establishing a profile would be defeated.
[20]. See Segal, supra note 19, at 33.
[21]. Robert A. McCulloch & Sandra G. Wilkinson, Concealed Weapon Laws: Their Potential Impact on the Workplace, 13 Compleat Law., Fall 1996, at LN1 (citing Lu Pham, Violence in the Workplace and the New Right to Carry Gun Law-- What Employers Need to Know 3 (Oct. 19, 1995) (unpublished manuscript, on file with Haynes & Boone, L.L.P., Fort Worth)). The dollar costs alone of workplace violence are staggering. In the United States in 1992, costs were estimated at approximately $4.2 billion. See Kinney, supra note 14, at 27. Costs included in this estimate were as follows: additional litigation expenses; reduced stock value, sales, and productivity; additional training for replacement workers and additional recruitment costs; medical treatment and lost wages for injured individuals; and increased security costs. See id.
[22]. See Mary Helen Yarborough, Securing the American Workplace, HR Focus, Sept. 1, 1994, at 1. Yarborough notes the findings of Joseph A. Kinney, executive director of the National Safe Workplace Institute, stating that: "(s)ome companies have (workers' compensation) policies in which the loss of life is cheaper than making workplaces safer for their employees." Id.
[23]. See Tenn. Code Ann. S 50-6-108 (1996). This Note will not discuss the implications of workers' compensation law in Tennessee on employer liability. For a thorough discussion of Tennessee workers' compensation law, see Thomas A. Reynolds, Tennessee Workers' Compensation (3d ed. 1994).
[24]. Respondeat superior means "(l)et the master answer. This doctrine or maxim means that a master is liable in certain cases for the wrongful acts of his servant, and a principal for those of his agent." Black's Law Dictionary 1311-12 (6th ed. 1990).
[25]. "Scope of employment" is broadly defined for these purposes. A violent act will generally be deemed to have occurred within the scope of employment if committed while the employee is performing services for the employer or during activity incidental to providing such services. See Segal, supra note 19, at 33.
[26]. See Restatement (Second) of Agency § 219 (1958).
[27]. See id. §§ 228-29; Gray & Wood, supra note 6, at §1.
[28]. See DiLorenzo & Carroll, supra note 17, at 27.
[29]. See id.
[30]. The expansive nature of employer liability under a negligent hiring theory may even provide a basis for holding employers liable for the criminal acts of their employees, especially if the hiring decision provided the employee with the opportunity to commit the crime. See Restatement (Second) of Agency § 217(d) (1958).
[31]. Gray & Wood, supra note 6, at §1.
[32]. See id.
[33]. Gates v. McQuiddy Office Prods., No. 02A01-9410-CV-00240, 1995 WL 650128, at *1 (Tenn. Ct. App. Nov. 2, 1995) (citing Restatement (Second) of Agency § 213(b) (1958)).
[34]. DiLorenzo & Carroll, supra note 17, at 28.
[35]. The same five-part test applied in the negligent hiring cases should be applied in these cases as well. See supra note 34 and accompanying text.
[36]. See DiLorenzo & Carroll, supra note 17, at 28.
[37]. 97 S.W.2d 452 (Tenn. Ct. App. 1936).
[38]. Id. at 453.
[39]. See id. at 454.
[40]. 845 S.W.2d 173 (Tenn. 1992).
[41]. See id. at 175. Linder Construction Company contracted with Samuel Carpenter, the son of their construction supervisor, to paint and wallpaper the plaintiff's home. See id. The record indicated that Carpenter had substance abuse problems and three DUI convictions, but there was no evidence of any other criminal convictions. See id.
[42]. See id. at 179. Carpenter gained access to the victim's home with a pass key that the plaintiff alleged was stored negligently in a model home in plaintiff's development. See id. at 175. Plaintiff's initial complaint included an allegation of negligent hiring, but that allegation was not argued on appeal. See id. at 184 n.1.
[43]. Id. at 179.
[44]. See id. at 178.
Foreseeability must be determined as of the time of the acts or omissions claimed to be negligent.
"Negligence . . . has been defined as conduct which falls below a standard established by the law for the protection of others against unreasonable risk of harm. The idea of risk in this context necessarily involves some recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow. Risk . . . may then be defined as a danger which is apparent, or should be apparent, to one in the position of the actor."
Id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 31, at 170 (5th ed. 1984)).
[45]. See id. at 184.
[46]. See id. at 184-85, 185 n.1 (Daughtrey, J., dissenting).
[47]. See id. at 185 n.1 (Daughtrey, J., dissenting).
[48]. Id. (Daughtrey, J., dissenting) (citing Kendall v. Gore Properties, Inc., 236 F.2d 673, 679 (D.C. Cir. 1956)).
[49]. See id. (Daughtrey, J., dissenting) (citing Ponticas v. K.M.S. Invs., 331 N.W.2d 907 (Minn. 1983)).
[50]. 885 S.W.2d 70 (Tenn. Ct. App. 1994).
[51]. See id. at 72. Brookside neither conducted a criminal history check nor contacted all former employers of the individual. See id.
[52]. Id.
[53]. See id at 73.
[54]. No. 02A01-9410-CV-00240, 1995 WL 650128, at *1 (Tenn. Ct. App. Nov. 2, 1995).
[55]. See id.
[56]. See id.
[57]. See id. at *2.
[58]. Id. (citing Valdez v. Warner, 742 P.2d 517 (N.M. Ct. App. 1987)).
[59]. Id.
[60]. See id.
[61]. See discussion on background checks and applicant testing infra Parts V.C., V.D.
[62]. 29 U.S.C. § 651(b) (1996).
[63]. Congress's declared purpose was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. S 651(b) (1970).
[64]. OSHA relied on the general duty clause in holding a health care facility liable for failing to protect its employees from violent attacks by patients. See Psychiatric Hospital in Chicago Cited by OSHA for Workplace Violence, 23 O.S.H. Rep. (BNA), at 646 (Oct. 27, 1993). OSHA liability generally will protect employees from stranger assaults, and, to a lesser extent, co-employee assaults.
[65]. 29 U.S.C. § 654(a) (1994).
[66]. Terry S. Boone, Violence in the Workplace and the New Right to Carry Gun Law--What Employers Need to Know, 37 S. Tex. L. Rev. 873, 875 (1996) (citing 29 U.S.C. § 654(a) (1994)).
[67]. These standards vary depending on the individual circumstances in each case, but may require some combination of the following precautions:
(S)ecurity programs and devices (such as bullet-proofing, locks, lights, and alarms); locked drop-safes; well-lit parking lots; publicly visible work areas; implementing procedures that are less dangerous (such as storing and transporting money); training (such as in techniques of conflict resolution, nonviolent responses, and procedures for responding to criminal threats); electronic surveillance; and working in teams rather than alone.
Id. at 876.
[68]. Criminal penalties under OSHA are still comparatively slight. The maximum sentence for an employer is six months imprisonment. See 29 U.S.C. S 666(e) (1994). Moreover, as of 1988, only fourteen cases had been prosecuted. See Getting Away with Murder in the Workplace: OSHA's Non-use of Criminal Penalties for Safety Violations, H.R. Rep. No. 100-1051, at 4 (1988). Given these rather lenient criminal sanctions and OSHA's seeming unwillingness to prosecute, some state prosecutors are seizing the initiative. For a thorough discussion of criminal prosecution for workplace homicides, see Michael B. Bixby, Workplace Homicide: Trends, Issues, and Policy, 70 Or. L. Rev. 333 (1991).
[69]. Tenn. Code Ann. § 39-17-1351 (1997). The new law allows an applicant to obtain a four-year permit for a $115 processing fee, eliminates the need to post a bond, and requires only one permit for all weapons. See Tenn. Code Ann. § 39-17-1351(n), (p) (1997).
[70]. Tenn. Code Ann. § 39-17-1351(c) (1997).
[71]. Tenn. Code Ann. § 39-17-1351(i) (1997). See infra notes 82-87 and accompanying text (discussing the state's inability to effectively implement these provisions).
[72]. Tenn. Code Ann. § 39-17-1351(j) (1997).
[73]. See, e.g., Tex. Rev. Civ. Stat. Ann. art. 4413 (West 1996).
[74]. See Boone, supra note 66, at 891.
[75]. See Tenn. Code Ann. § 39-17-1315(b)(1)-(2) (1997). See also infra notes 91-94 and accompanying text (discussing language of Tenn. Code Ann. § 39-17-1315(b)(1)-(2) (1997)).
[76]. Boone, supra note 66, at 890.
[77]. See infra Part V.A.
[78]. See Andrea Gerlin, Concealed-Gun Laws Give Businesses the Jitters, Wall St. J., Mar. 5, 1996, at B1.
[79]. See Duren Cheek, 4000 a Month Requesting Gun Permits in Tennessee, Tennessean, Feb. 13, 1997, at 1B.
[80]. See id.
[81]. See supra text accompanying note 70 (detailing the statutory exclusions including, among others, the mentally ill, drug addicts, and fugitives).
[82]. See Vicki Brown, Gun Check: Backlog for Weapons Permits Is Criticized, Knoxville News-Sentinel, Feb. 13, 1997, at A1.
[83]. See Duren Cheek, Gun Permit Law Riddled with Problems, Tennessean, Feb. 19, 1997, at 1A (referring specifically to backlog in Madison County, Tennessee).
[84]. Id.
[85]. See id.
[86]. See id. Of course, certain convicted felons may not legally possess a gun in Tennessee regardless of whether they are issued a permit. See Tenn. Code Ann. § 39-17-1307 (1997).
[87]. Duren Cheek, Background Checks Not Balancing, Tennessean, Feb. 20, 1997, at 1A. Only "one thing . . . became clear" at a meeting on February 12, 1997, when Memphis and Nashville officials met with the House Judiciary Committee to discuss compliance with the requirements for background checks-- "neither the Safety Department nor county sheriffs want to conduct the background checks." Cheek, supra note 79.
[88]. See Tenn. Code Ann. § 39-17-1351(e) (1997). This course includes both classroom and firing range hours. See Tenn. Code Ann. S 39-17- 1351(e) (1997). In order to qualify, an applicant must score seventy percent on a firing range test and must also pass a written test. See Kevin Robbins, Gun Class Aims for Smarts, Not Shots, Commercial Appeal, Dec. 9, 1996, at A1.
[89]. Gerlin, supra note 78.
[90]. Top employers around the country are prohibiting concealed weapons on employment premises in states with "right to carry" laws. Some of these businesses include American Airlines, Inc.; Continental Airlines, Inc.; Exxon Corp.; IBM Corp.; J.C. Penney Co.; Kmart Co.; Kroger Co.; Sears, Roebuck & Co.; United Parcel Service; and Wal-Mart Stores, Inc. See Frank Bass, Firing Line: Cities and Companies Say 'No' to Concealed Handguns, Wall St. J., Dec. 20, 1995, at T1.
[91]. Tenn. Code Ann. § 39-17-1315(b) (1997). "Otherwise notice" would seem to include oral prohibitions in addition to such means as posting or publication in employee handbooks.
[92]. Tenn. Code Ann. § 39-17-1315(b)(1) (1997) (emphasis added).
[93]. This type of conditional policy is similar to a no-smoking policy or a dress code.
[94]. Tenn. Code Ann. § 39-17-1315(b)(2) (1997) (emphasis added). This provision is narrower than the one adopted for employees, which states may be "posted or otherwise noticed." Tenn. Code Ann. § 39-17- 1315(b)(1) (1997) (emphasis added).
[95]. Not all employers need to implement weapon policies. Federal law prohibits taking guns into banks, and most state laws prohibit taking weapons into liquor stores, bars, courthouses, public buildings and playgrounds, schools, and hospitals. See Gerlin, supra note 78; see also Tenn. Code Ann. §§ 39-17-1309,-1311 (1997).
[96]. See McCulloch & Wilkinson, supra note 21, at 5. The language of the statute contemplates prohibitions "on premises owned, operated or managed" by the employer. Tenn. Code Ann. S 39-17-1315(b)(1) (1997). This broad language should be fully utilized by any employer establishing a no-weapons policy.
[97]. See, e.g., United States v. Graves, 554 F.2d 65, 66 n.2 (3d Cir. 1977); Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir. 1973).
[98]. See generally, e.g., Richard Dahl, Packing Heat, 82 A.B.A. J. 72 (1996).
[99]. See Tenn. Code Ann. § 39-17-1315(b) (1997); supra notes 75, 91 and accompanying text.
[100]. Security measures may include electronic warning systems with panic buttons, security guards, closed-circuit television monitoring, programmed access to the premises, workplace searches, intercom systems, metal detectors, or enhanced lighting. See Patrick H. Hicks, Workplace Violence: Reducing the Risk, Nev. Law., July 3, 1995, at 14, 16; Segal, supra note 19, at 33. An employer should be aware that even surveillance that is legal under federal and state law when properly conducted may give rise to claims of defamation, intentional infliction of emotional distress, or invasion of privacy if misused. See Barbara Ryniker Evans, When Violence Invades: Coming to Blows in the Workplace, 43 La. B.J. 448, 451 (1996). This Note is only intended to outline the potential areas of liability with respect to surveillance devices and should in no way be deemed a complete discussion of the law in these areas.
[101]. Note, however, that courts have held that employees have a reasonable expectation of privacy in areas within their exclusive control. See Butler v. Board of Comm'rs., No. 625, 1988 WL 55735, at *1 (Tenn. Ct. App. June 2, 1988). This may or may not include desks, lockers, employer-owned vehicles, etc. But see State v. Francisco, 790 S.W.2d 543 (Tenn. Crim. App. 1989) (narcotics detective had no expectation of privacy in department vehicle assigned to him for his exclusive use). Thus, to remain on the side of caution, the employer should acquire authorization for these types of searches.
[102]. For a similar conditional policy, see supra note 93.
[103]. Background checks may evidence "reasonable care" under a negligence standard. See DiLorenzo & Carroll, supra note 17, at 30. Background checks, however, should not be broader than necessary so as to avoid implicating employer liability for invasion of employee privacy. See Burr E. Anderson, Background Checks: Legality Versus Liability, HR Focus, March 1, 1993, at 4. Common sense also dictates that the information gleaned be kept confidential.
[104]. See DiLorenzo & Carroll, supra note 17, at 30.
[105]. See Segal, supra note 19, at 33. A previous employer who does misrepresent such propensities may be liable for negligent referral. See DiLorenzo & Carroll, supra note 17, at 28. Negligent referral is described as "a cause of action once removed" and the analysis is similar to that of negligent hiring, retention, and supervision. Id. "Negligent referral occurs when an employer negligently, through acts or omissions, refers an employee to a second employer. The employee is hired by the second employer and then injures a third party." Id.
[106]. The release should be broad enough to immunize both the employer and anyone providing such information, even if the information is ultimately proven to be incorrect. See DiLorenzo & Carroll, supra note 17, at 30. See also 15 U.S.C.A. §1681(a) (West 1997) (requiring the consent of the employee or applicant prior to seeking a credit report or other background check).
[107]. Although estimates indicate that only two percent of the employees who engage in workplace violence have prior criminal convictions, failure to perform such routine checks may be viewed by the courts as negligence on the part of the employer. See Segal, supra note 19, at 33.
[108]. See DiLorenzo & Carroll, supra note 17, at 25.
[109]. See id.
[110]. See Gary D. Miller & James W. Fenton, Jr., Negligent Hiring and Criminal Record Information: A Muddled Area of Employment Law, 42 Lab. L.J., Mar. 1991, at 189-90.
[111]. See DiLorenzo & Carroll, supra note 17, at 25. Some states prohibit using criminal records in hiring decisions. See id. Tennessee, however, allows such use as a factor for consideration. See Doe v. Linder Constr. Co., 845 S.W.2d 173, 179 (Tenn. 1992); Gates v. McQuiddy Office Prods., No. 02A01- 9410-CV-00240, 1995 WL 650128, at *1 (Tenn. Ct. App. Nov. 2, 1995).
[112]. 42 U.S.C. §§ 12101-12213 (1997).
[113]. See, e.g., Green v. Missouri Pac. R.R. Co., 523 F.2d 1290 (8th Cir. 1975) (disproportionate adverse impact on black males); Gregory v. Litton Sys., Inc., 316 F. Supp. 401 (C.D. Cal. 1970); see also Fair Employment Practices Manual; EEOC Guide to Pre-Employment Inquiries, S A, Lab. Rel. Rep. (BNA) No. 695, at 443:65 (Apr. 1992); Terry Calvani, Note, Discrimination on the Basis of Arrest Records, 56 Cornell L. Rev. 470 (1971).
[114]. See Vincent Schiraldi, Why the Huge Percentage of Young Blacks in Jail? Numbers Reveal Wide Disparity in Treatment, According to Race, L.A. Daily News, Feb. 18, 1996, at V1.
[115]. See generally, e.g., 45A Am. Jur. 2d Job Discrimination S 73 (1993).
[116]. Convictions should be considered in light of the demands of the particular position. Factors to consider include the nature of the conviction, the amount of time that has lapsed since the conviction, and the applicant's work record since the time of the conviction. See Boone, supra note 66, at 885.
[117]. See Barford & Tseng, supra note 13, at 76.
[118]. Id. at 77 (citing W. Torgerson, Theory and Methods of Scaling 1 (1958)).
[119]. See Barford & Tseng, supra note 13, at 77.
[120]. See id.
[121]. See id. (quoting John Monohan, Predicting Violent Behavior: An Assessment of Clinical Techniques (1981)).
[122]. Restatement (Second) of Torts §§ 652A-C (1976).
[123]. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 101, 104 Stat. 327 (1990) (codified in scattered sections of 42 and 47 U.S.C.). Although there are minor exceptions, the ADA generally prohibits a covered entity from conducting medical examinations or conducting other inquiries "of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." 42 U.S.C. § 12112(d)(2)(A) (1996).
[124]. The ADA defines a "qualified individual" as one who can, with or without reasonable accommodation, perform the essential functions of the job. See 42 U.S.C. § 12111(8) (1997).
[125]. A "disability" is a physical or mental impairment that substantially limits one or more major life functions. See 42 U.S.C. § 12102(2) (1997). "Mental disabilities include any mental or physiological disorder such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities which significantly restrict a major life activity." Boone, supra note 66, at 886 (citing 42 U.S.C. § 12102(2) (1988)). A "disability" also includes being regarded as having such an impairment. See 42 U.S.C. § 12102(2)(c) (1997).
[126]. See Hindman v. GTE Data Serv., 3 A.D. Cases (BNA) 641 (M.D. Fla. 1994) (potential ADA violation for terminating employee who possessed an unauthorized weapon on the employment premises but claimed his actions were the result of a chemical imbalance). The same result will occur whether the employee actually has a disability or the employer simply regards the individual as having such disability. See 42 U.S.C. § 12102(2)(c) (1997).
[127]. EEOC guidelines on pre-employment inquiries under the ADA define "medical examinations" as "procedures or tests that seek information regarding an individual's physical or mental impairment or that seek information regarding an individual's physical or psychological health." EEOC Enforcement Guidance on Pre-Employment Inquiries Under Americans with Disabilities Act, Daily Lab. Rep., (BNA) No. 96, § V(A) (May, 5, 1994) (hereinafter EEOC Guidelines).
[128]. Leo T. Crowley, Medical Exams and Inquiries Under the Disabilities Act, 211 N.Y.L.J. 3 (1994) (citing EEOC Guidelines, supra note 127, § V(A)).
[129]. See EEOC Guidelines, supra note 127, § V(B).
[130]. See Crowley, supra note 128, at 4 (citing EEOC Guidelines, supra note 127, § V(B)).
[131]. The direct threat is not a generalized fear but is rather "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3) (1997); see also DiLorenzo & Carroll, supra note 17, at 26 (citing Margaret Hart Edwards, The ADA and the Employment of Individuals with Mental Disabilities, 18 Employee Rel. L.J. 347, 361-62 (1992-1993)).
[132]. See 42 U.S.C. § 12114(a) (1997). Current drug users are not deemed individuals with a disability under the ADA. See id. Employers, nevertheless, may not exclude applicants based on prior abuse or treatment. See EEOC Compl. Man., (BNA) No. 915.002 (Mar. 14, 1995).
[133]. Evans, supra note 100, at 451.
[134]. McCulloch & Wilkinson, supra note 21, at 2-3 (citing Lu Pham, supra note 21).
[135]. See id.
[136]. See Bob Smith, Cease Fire! Preventing Workplace Violence, HR Focus, Feb. 1, 1994, at 1.
[137]. See id.
[138]. Reporting in a large company may be best facilitated by a 1-800 telephone number. See DiLorenzo & Carroll, supra note 17, at 30.
[139]. Management personnel who pay attention to the warnings given to them by fellow employees may be able to prevent a violent act from occurring. "(T)he following actions or conditions have proven to be some of the best predictors of violent behavior: overt threats of violence or threatening actions; major changes in habit; expression of unusual or bizarre thoughts; a fixation with weapons; romantic obsession; depression; and chemical dependence." Smith, supra note 136, at 4.
[140]. Hicks, supra note 100, at 15-16 (citing Littler et al., Terror and Violence in the Workplace 51 (1994)).
[141]. See Pollet, supra note 15, at 133 (citing Lombardi, supra note 14).
[142]. DiLorenzo & Carroll, supra note 17, at 30.
[143]. See John R. Lott, Jr. & David B. Mustard, Crime, Deterrence, and Right-to-Carry Concealed Handguns, 26 J. Legal Stud. 1 (1997). On the other side of the spectrum, the New York Times recently reported the results of two studies in Florida indicating that the enactment of the right-to-carry laws in Florida has allowed felons to obtain weapons with greater ease, thereby increasing the murder rate in some cities. See Mark Genrich, Study Provides Ammunition for Concealed-Carry, Commercial Appeal, Sept. 27, 1996, at A9. Other researchers support this notion reporting an increase in gun homicides in Jacksonville of 74%, an increase in Tampa of 22%, and an increase in Miami of 3%. See id.
[144]. See Lott & Mustard, supra note 143, at 1.