SAFETY WORKPLACE VIOLENCE NEGLIGENCE WORKPLACE INJURIES WAYNE P

SAFETY WORKPLACE VIOLENCE NEGLIGENCE WORKPLACE INJURIES WAYNE P SCHULMAN, Esq. SVP, General Counsel

WORKPLACE SAFETY NEGLIGENCE IN EMPLOYMENT • DUTY - Arises out of law or foreseeable risk to foreseeable plaintiff • BREACH - Failure to act when (under the circumstances) Duty requires Action - - - or inaction when Duty (under the circumstances) requires forbearance from action • CAUSATION - (Proximate/Legal): Knows or reasonably should know of likelihood of injury and acts (or fails to act) with disregard for consequences despite duty otherwise. Absence of intervening superseding act • DAMAGES - (Injury) = $$$$ loss/cost

WORKPLACE SAFETY NEGLIGENCE IN EMPLOYMENT NEGLIGENT EMPLOYMENT Hiring a person whom the employer knows, or reasonably should know will cause an injury to themselves or others or bring violence into the workplace

WORKPLACE SAFETY NEGLIGENCE IN EMPLOYMENT NEGLIGENT TRAINING Failing to provide training under the circumstances that would, if provided prevent employees from causing harm to themselves or others

WORKPLACE SAFETY NEGLIGENCE IN EMPLOYMENT NEGLIGENT SUPERVISION Failing to provide supervision or monitoring of employees to prevent conduct that could cause injury to themselves or others

WORKPLACE SAFETY NEGLIGENCE IN EMPLOYMENT NEGLIGENT RETENTION Keeping employees that the employer knows or reasonably should know has caused or will cause harm to themselves or others

WORKPLACE SAFETY INJURY & ILLNESS PREVENTION CAL OSHA SB 198 Injury & Illness Prevention Plan (IIPP) Rules, procedures and practices for Safety and Illness Prevention • A system for communicating these rules to employees & management • A system for ensuring compliance with these rules. Procedures to identify workplace security hazards & safety risks • A system for communicating these risk/hazards to employees & mgt • Training and instruction on how to recognize risks and hazards, prevent violence, what to do when violence, illness or injury occurs, including postings of same. • Procedures for investigating injuries or illness • Procedures for correcting and preventing further injuries or illness of the same kind, or a the kind reasonably to be foreseen

WORKPLACE SAFETY VIOLENCE IN THE WORKPLACE Type I Violence / Injury Events Perpetrator is: Stranger w/ no legitimate right of entry Employers at risk: Banks, taxis, liquor stores, convenience stores, gas stations, all-night food service, etc. {handles cash, accessible by public, easy entry & exit, minimal staffing, etc. }

WORKPLACE SAFETY VIOLENCE IN THE WORKPLACE Type II Violence/Injury Events Perpetrator is: Customer, client, patient, passenger, etc. Employers at risk: Physicians, hospitals, airlines, buses, railroads, restaurants, etc.

WORKPLACE SAFETY VIOLENCE IN THE WORKPLACE Type III Violence/Injury Events Perpetrator is: Employee or employment type relationship or nexus to employment relationship Employers at risk: All employers

WORKPLACE SAFETY VIOLENCE IN THE WORKPLACE Palsgraf v. Long Island R. R. Court of Appeals of New York, 1928 A guy with a box was rushing to get on a train. One of the railroad’s employees gave him a shove, and he dropped a non-descript package which turned out to be filled with fireworks. KERPLEWIE! Somehow, it is alleged, the explosion knocked down a scale and hit the plaintiff. Plaintiff sues for her injuries based on theory that the railroad’s employee was negligent. The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. "Proof of negligence in the air, so to speak, will not do"

WORKPLACE SAFETY WORKPLACE INJURIES California Workers’ Compensation Available to all employees on 1 st day of employment Provides: “No cost” medical treatment Compensation Tax fee replacement income during disablement Continued income during diminished capacity Modified job Rehabilitation training

WORKPLACE SAFETY WORKPLACE INJURIES California Workers’ Compensation Applies to injuries that: “arise out of” Course Scope, and Location (or deemed Location of Work) Excludes: Horseplay, illegal activity, intoxication, self-inflicted, commute, voluntary social activities

WORKPLACE SAFETY WORKPLACE INJURIES California Workers’ Compensation Obligations of Employer Post mandatory CA Workers’ Comp Information Provide for immediate medical treatment Provide employee with and assist filing of claim form Abstain from adverse employment action for 1 year after return to modified job Exceptions: illegal conduct, terminable policy violation Do not discriminate against WC claimant CA Labor Code § 132(a)