By Beth Nesis and Mike Beaver

Violence in the workplace has reached epidemic proportions. The U.S. Department of Justice reports that each year nearly one million individuals become victims of violent crime while working. According to the Bureau of Labor Statistics, homicide is the leading cause of job-related deaths for women, and the second leading cause for all workers. Ski areas are much as risk as any other workplace.

The critical issue for ski areas is that as the pool of qualified seasonal employees continues to diminish, the likelihood of workplace violence increases. According to John Denault, Director of Human Resources for Mammoth Mountain, "Ten years ago, security wasn't an issue. Today, we are all vulnerable, particularly those of us responsible for taking adverse actions against employees."

Harry Mosgrove, the president of Copper Mountain Resort in Colorado agrees that times have changed. "Four years ago, we hired a full time security officer to protect our staff and to be responsive the concerns of our guests," said Mosgrove.

Workplace violence is a serious and growing problem that demands our attention. Ski areas should plan on addressing the problem firmly, humanely, and proactively – before it's too late. Ignoring the issue may lead not only to injury, but also to a variety of unplanned costs -- litigation expenses, insurance losses, sabotage, vandalism, psychological care for employees, increased security, public relations expenses, and higher turnover.

SKI AREAS' LEGAL OBLIGATIONS

Under a variety of legal theories, ski area employers may be held liable to employees and ski area guests for workplace violence. In certain instances, the employer may even be sued by the alleged perpetrator. Below is a sample of the legal claims that plaintiffs typically assert against employers in this area.

NEGLIGENT HIRING, RETENTION, AND SUPERVISION

An employer has a duty to protect employees and guests from injuries caused by an employee when the employer knows, or should have known, that the employee poses a risk of harm to others. A claim for negligent hiring can arise when an employer doesn't exercise reasonable care in hiring– for instance , failure to contact an applicant's former employer, check background information, references, or criminal convictions, where such scrutiny would have suggested that the applicant was unfit for the job because of a predisposition to harm others. The duty to conduct a thorough background check is especially important when hiring employees who spend time with guests in isolated settings, such as ski school instructors, or child care workers.

A claim of negligent retention is similar, except that it is based on knowledge that the employer gains after the employee was hired. For example, suppose ski area management becomes aware that a childrens' ski school supervisor has engaged in some sexually suggestive conduct toward a student. If the area retains the instructor and he subsequently molests a student, they may be liable.

Negligent supervision claims occur when an employer fails to take proper steps to supervise employees. Again, the most common scenerio involves employees who have uniquely private moments with guests. For instance, in a childrens' ski school setting, a jury might find an employer liable for negligent supervision if the area totally failed to implement or enforce procedures designed to eliminate the unnecessary time an instructor might spend alone with a child in an enclosed area.

DUTY TO WARN

Some courts have held that employers have a duty to warn employees of a foreseeable risk of harm, especially where there is a specific identifiable threat made to a particular employee. However, because of the potential liability to the alleged perpetrator, employers must be careful when giving the required notice. Incorrect statements by an employer about a potential perpetrator can lead to liability for defamation and invasion of privacy.

OSHA AND STATE LAW EQUIVALENTS

Under the federal Occupational Safety and Health Administration (OHSA) and state law equivalents, an employer is obligated to provide a workplace free from recognized hazards likely to cause death or serious physical harm to its employees. OSHA citations for workplace violence are still relatively rare and OSHA has yet to propose comprehensive regulations dealing with preventing workplace violence, but these laws shouldn't be ignored.

AMERICANS WITH DISABILITIES ACT

One of the most difficult challenges facing employers today is deciding what to do about an employee who suffers from a mental or psychological impairment. Under the ADA, if a person suffers from such a condition, but can otherwise perform the job, the employer can't refuse to hire or discharge the individual. It is only if the disability poses a significant (direct) risk of harm that an employer can refuse employment. Employers can face some legal risk when dealing with a potentially violent employee.

PROFILE OF A VIOLENT EMPLOYEE: THE WARNING SIGNS

Although it is impossible to predict with certainty who may become violent in the workplace, here are some warning signals.

• History of violent behavior;
• Obsession with guns and other weapons;
• Verbal threats;
• Personal problems such as divorce, death of a close friend or relative, or bankruptcy;
• Significant change in behavior -- mood swings, outbursts, insubordination;
• Substance or alcohol abuse;
• Being a loner;
• Paranoia about others; and
• Anger without an outlet to vent the anger.

Don't assume that an employee exhibiting one or more of these characteristics is potentially violent. Instead, use this profile to foster awareness of the characteristics commonly associated with perpetrators. Also, keep in mind that workplace violence may increase in response to disciplinary action, termination, layoff, strikes and changes in the economy.

PRACTICAL TIPS FOR REDUCING THE RISK OF VIOLENCE

There is no universal solution for reducing the risk of violence at ski areas. Instead, these suggestions must be tailored to fit your particular circumstances.

• Hire Selectively - Although ski areas don't always have the luxury of turning away marginal employees, sometimes that may be the right decision.
• Contact References and Past Employers - Include a disclosure authorization provision in your application that will allow past employers and references to talk candidly with the human resources department about the potential employee. Even if past employers won't talk to you, keep a record of the fact that you tried.
• Security - Install good external lighting and silent alarms. Review all situations where employees have private contact with others, and consider procedures to decrease opportunity for abuse.
• No Tolerance Policy - Make sure employees know that any fighting, violence, threats, intimidation, or possession of a weapon on ski area time or property is cause for immediate discharge.
• Employee Assistance Program (EAP)- Consider implementing an EAP so that employees can get help for any emotional, drug, alcohol, or similar problems that could trigger violent reactions.
• Convictions - Inquire into the convictions (not arrests) of job applicants, and consider screening out those who have a violent background. However, be careful when inquiring about the convictions not to disqualify an applicant regardless of the nature of the offense or when it occurred because this has been found unlawful in certain situations. Also, check the laws in your state because the rules concerning conviction and arrest background checks vary across state lines.
• Develop a Workplace Violence Team - This group should be ready to deal with incidents should they arise and should include senior management, human resources, security, and legal counsel.
• Conduct an Investigation - Threats must be taken seriously. It is better to overreact. After the investigation, be sure to discuss your conclusions with the reporting party.
• Conduct Training Programs - Instruct managers and supervisors how to recognize the early warning signs of potentially violent behavior.
• Involve Law Enforcement and the Courts - When necessary, notify the police and obtain a restraining order from the court.

Beth Nesis is a partner with Nesis & Nesis L.L.P. and was formally an associate with Holland & Hart L.L.P. Mike Beaver is a partner in the Denver-based firm of Holland & Hart. Holland & Hart has offices throughout the Rocky Mountain West. Both Beth and Mike practice in the areas of employment law and ski area defense. Beth can be reached at (303) 442-1615 and Mike can be reached at (303) 290-1600.