Jack M. Vaughan 2015-01-26 05:17:09
Risk management efforts can help protect your firm and employees if tragedy strikes. We live in a violent, sometimes dangerous world. Today, sadly, any and every workplace or travel destination may be the next scene of tragedy, injury, or death. The Charlie Hebdo killings in Paris vividly demonstrate this. Under these circumstances, an enhanced “duty of care” may be owed by employers to their employees to try to ensure safety and security in the workplace and while traveling on the company’s behalf. Under existing U.S. law, every employer has an affirmative responsibility to try to provide a safe working environment, and that responsibility extends to work away from the normal work site.1 Law firms and law offices are not immune from risks of violence. In fact, lawyers (and judges) have been the targets of hostile adversaries and disgruntled clients.2 When this happens, others in the law firm or office may become victims as well. So, it can be reasonably asserted that law firms should pay extra attention to preventing or mitigating acts of violence. This is, simply put, risk management focused upon the security and safety of the firm’s lawyers and staff. Shouldn’t that be one of the highest priorities of the risk management effort in a law firm? Unfortunately, it is not in most firms. The overwhelming majority of risk management time and attention is given to the possibilities of malpractice (preventing it and insuring against it), ethics violations, conflicts of interest, new client and lateral hire screening, and building and protecting the reputation of the firm and its lawyers. Most of the remaining risk management effort is directed toward the acquisition of other insurance coverages: property and casualty, general liability, employer practices liability, management liability, and, more recently, cyber liability. Disaster recovery and business continuity planning and preparation are also given some significant attention, at least in the larger firms. The purpose of this article is to encourage law firms and firm management to focus on two areas of security and safety risk. Taking steps to educate lawyers and staff does not take much time or money, but such action can save lives and minimize injury. INTERNATIONAL TRAVEL Violence and civil unrest is present in many regions of the world, and there are areas of special concern for Americans traveling abroad. The recent Ebola crisis dramatized the real health risks that can exist beyond U.S. borders. Regardless of a firm’s size, the practice of law today may require international travel due to the global nature of a client’s business. This is especially true for clients in energy-related fields as business begins to accelerate for U.S. companies in Mexico, Brazil, and other Latin American countries. The larger firms often have offices in foreign countries, and the issues addressed here require even more attention for those lawyers and staff members. Depending upon the country visited or occupied, the security risks will vary significantly from those normally encountered in the United States. In some foreign regions, the risk of kidnapping, extortion, piracy, and/or terrorism are elevated and require special precautions. Kidnap and ransom insurance coverage is readily available. Law firms of all sizes should protect themselves and their people from threats, extortion, and kidnapping for ransom. Importantly, this protection typically extends, at the election of the firm, to the family members of the lawyer or staff member. The definitive work examining the employer’s duty of care for protecting international assignees, their dependents, and international business travelers is a 2009 white paper by Professor Lisbeth Claus, commissioned by International SOS.3 It is an authoritative study of the responsibilities of employers for their employees (and dependents) who cross borders as part of their work duties. The employer’s duty of care regarding these individuals clearly extends beyond the “usual” level. Much depends on the travel or work assignment destination( s). The first step is to seek the most current and comprehensive information regarding the risk levels for specific countries, regions, and cities. The State Department’s Office of American Citizens Services and Crisis Management administers the Consular Information Program, which reports to the public on conditions abroad that may affect safety and security. Country-specific information, travel alerts, and travel warnings are vital parts of this program.4 There are various other sources of “intelligence” regarding risk levels around the world. Much is free of charge or at a modest cost. A law firm should make it readily available to its travelers and adopt procedures for approving travel to high-risk destinations. VIOLENCE IN THE WORKPLACE When we think of workplace violence, we conjure immediately the many incidents in recent years in which an armed individual enters an office or other establishment and shoots multiple victims. In most cases, the shooter had some connection with the institution and with some of the victims (business owner, supervisor, coworker, etc.), but in other cases, the nature of the incidence was completely random. There is a range of workplace behavior that is problematic and can result in violence. These actions include physical assaults, threats (direct or veiled), stalking, and aggressive or erratic behavior. Left unchecked, any of these behaviors can escalate into serious physical violence. In the United States, the employer’s threshold for duty of care regarding workplace violence prevention has been raised significantly with the release of the American National Standard titled “Workplace Violence Prevention and Intervention” (effective September 2011).5 It is a terrific road map for employers who choose to address these issues in anticipation of future problems. It provides clear guidance regarding every aspect of a comprehensive workplace violence prevention program. A key part of an effective program is to strongly encourage all personnel to report problematic behavior. Employees should be trained to recognize warning signs of potential violence (personal history, possible grievances, motives, mood swings, behavioral and personality changes, etc.) and how to report them effectively. Many acts of workplace violence are perpetrated by the spouse or domestic partner of an employee.6 The standard addresses the need to integrate the issue of intimate “partner” violence into workplace violence prevention strategies. A workplace violence prevention program must also address how to respond to an incident of violence. Again, we are all too aware that horrific shootings do occur in workplaces, schools, and public places—and a 2014 FBI study reports that these shootings are increasing at an alarming rate.7 Almost half of the “active shooter” incidents from 2000 to 2013 occurred in workplaces, far more than any other category (24 percent in schools and colleges). Further, two-thirds of the workplace shooters had previously been employed there or had a relationship with an employee. The conclusion for law firms must be that the risk of an active shooter in the workplace exists today, whether in urban or rural areas and regardless of firm size and the number of employees. Can any employer today legitimately contend that an active shooter in its workplace is not a foreseeable event?8 It is incumbent upon a law firm to educate and train its employees on how to respond to an active shooter in or near the firm’s offices. Prior training is the most critical factor in whether an individual will respond quickly and decisively and, in some cases, whether the individual will survive. Because these incidents often occur in public places, trained employees are prepared to act whenever and wherever an incident occurs. The vast majority of law enforcement agencies currently endorse the “Run, Hide, Fight” response protocol. If the location of the shooter is known and there is a clear path of escape, the best option is usually to exit the premises (Run). In high-rises and in other situations where a clear escape path is not available, the best option is often to shelter (Hide). Experts recommend locking and barricading doors, turning out lights, silencing phones, and taking cover behind objects that are solid enough to stop bullets. As a last resort, people caught in such an incident may need to subdue the shooter with force (Fight). Training emphasizes teamwork, improvised weapons, and the element of surprise to increase the chances that such an attempt will succeed.9 For law firms ready to take these steps, ample resources exist and most are free of charge.10 The city of Houston has been particularly vigilant in educating its businesses and citizens on how to survive an active shooter event.11 SUMMARY The safety and security risk landscape changed for employers and employees in the United States with the events of 9/11 and with the escalation in recent years of public and workplace shootings and other global violence and terrorism. Most believe the employer’s duty of care to employees and others in the workplace (including while traveling or located abroad) has risen. There is simply no excuse for inaction by law firm management. The proactive steps to educate and train employees and make security and health information available are not time-consuming or costly, and the employees will appreciate them. It is, simply, the right thing to do. NOTES 1. The federal Occupational Safety and Health Act of 1970 imposes on employers a statutory duty of care under its “general duty” clause. 29 USC 654; similar laws exist in most countries. 2. Heather King and Jessica Janicek, Killing the Messenger, Texas Bar Journal, September 2014. 3. https://www.internationalsos.com/en/files/Duty_of_Care_whitepaper.pdf. 4. That information can be found at http://travel.state.gov/travel/cis_pa_tw/tw/tw_1764.html. 5. http://webstore.ansi.org/RecordDetail.aspx?sku=ASIS%2FSHRM+WVP.1-2011. 6. Note that the American Bar Association has just adopted a domestic violence model workplace policy. It is entitled Model Workplace Policy on Employer Responses to Domestic Violence, Sexual Violence, Dating Violence and Stalking (“Model Policy”), dated August 2014 (http://www.americanbar.org/content/dam/aba/adminis trative/house_of_delegates/resolutions/2014_hod_annual_meeting_112a.authcheckdam.pdf). The policy’s stated purpose is to enhance workplace awareness of these issues and create a supportive and safe work environment for victims of domestic violence and other employees. 7. http://www.fbi.gov/news/stories/2014/september/fbi-releases-study-on-active-shooterincidents/fbi-releases-study-on-active-shooter-incidents. 8. The judge in the court case involving the horrific shooting in the Aurora movie theater will allow the issue of whether the event was foreseeable to go to the jury. 9. Other steps a law firm can take include an emergency notification system (“blast” email and voice messages, public address system warnings, etc.), facility security review, enhanced receptionist training, coordination with building management and local law enforcement, etc. 10. The Department of Homeland Security offers a wealth of information about active shooter awareness, incident response, and workplace violence prevention on its website (http://search.dhs.gov/search?query=active+shooter&op=Search&affiliate=dhs); the FBI maintains an Active Shooter and Mass Casualty Incidents Web page with additional resources (http://www.fbi.gov/about-us/cirg/active-shooter-and-masscasualty-incidents); and, there are two excellent videos accessible at https://www.youtube.com/watch?v=r2tIeRUbRHw and http://countermeasureconsulting.com/active-shooter-prevention-free-training-video/. 11. The city’s public service training video (http://www.fbi.gov/about-us/cirg/activeshooter-and-mass-casualty-incidents/run-hide-fight-video) dramatizes an active shooter incident in the workplace. In addition, the Houston Police Department makes a highly trained speaker available to the citizens and businesses in the city free of charge. JACK M. VAUGHAN is the former administrative partner in Fulbright & Jaworski (now Norton Rose Fulbright), having retired after 27 years in that position. He currently consults with law firms on risk management issues and is an adviser to Control Risks, an international risk consultancy.
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