Part two – some examples of Workplace Morale and Violence

Example 1 – [employee work-related disability]

scenario and possible legal claims:

An IRS field auditor with a track record of excellent performance suffers a back injury at a taxpayer’s place of business which results in several months off work, failed regimens of physical therapy and steroid injections, followed by surgery.  Her back will never be the same, and she now has sciatic pain radiating down one of her legs, and has a medical work restriction of no lifting over 10 pounds.  The job requires her to lift and carry briefcases weighing up to 35 pounds when doing field audits.

She returns to work on light duty, but IRS starts pressuring her treating doctors as to why she can’t return to work full duty.  IRS continuously asks her for updated medical reports, even though several reports it already has all state that she has a permanent injury and disability.  When she has to see a doctor one day, IRS marks her AWOL even though prior notification of the doctor visit was given to the supervisor.  After several such episodes, IRS begins disciplining her for absences and/or poor performance.  Coworkers accuse her of slacking or exaggerating the injury, and they make fun of the slow way she now walks; her IRS manager knows all this and does nothing to stop it.   When she asks for accommodation to a desk job with a comfortable chair, her manager says that’s unworkable and refuses to provide it.

Suggestions:

This employee has not only suffered a serious, life-changing injury; she is also facing the loss of her livelihood – a job she trained for several years to get and in which she has invested several more years of her life.

Note that in this example the employee performed excellently before the injury.  Unless sufficient efforts are made to provide reasonable accommodation, all her training and skills will be lost to that employer.  Add to that loss the litigation and claims expenses, and the result can be damaging and disruptive to any employer.

Example 2 – [emotionally upset employee]

Scenario and possible legal claims:

A Postal clerk has been getting into disputes with co-employees over the past several months.  He has been at the Service for seven years, and has always performed adequately, but has never gotten along particularly well with others and has had a few customer complaints.  He likes to keep to himself and just do his job.  Earlier this year he got into a fist fight on the workroom floor with a co-worker, and since then others at work have taunted him and he has become increasingly sullen and prone to angry outbursts.  The Postal Service has given him two short suspensions (5 days and 10 days without pay) as a result of these problems.

Last month he got into a shouting match with his supervisor, who then ordered him escorted off the premises by Postal Inspectors.  He was sent him home on administrative leave, and currently he is not sure what will happen.  He believes that there is a conspiracy against him at work, involving the man he had the fight with, his supervisor and a few others.  He believes that certain Postal managers and Postal inspectors have been watching his house and following him around town.  He has never seen a psychologist or psychiatrist and doesn’t believe in that kind of medical treatment.  The Postal Service gave him a notice of proposed termination, to which he did not respond, and he has just received a disciplinary notice of termination for his conduct.

Suggestions:

This employee may be suffering from a severe emotional disturbance.  He may even be an undiagnosed paranoid schizophrenic.  Simply terminating his employment on a disciplinary basis, even where fully justified, may not be the best choice.  Taking this action may enrage the employee, confirm his suspicions about a conspiracy against him at work, and possibly expose other workers to violence if he acts on his feelings.

Federal agencies can initiate psychiatric disability retirement applications for employees who will not file such applications voluntarily.  While such an action will still probably upset this employee, it is not disciplinary in nature and might result in his at least being diagnosed with a mental illness.  That might be a starting point for his receiving badly needed treatment.

The last part of this article will examine another typical scenario, suggest how the problem can be defused before it becomes a bigger problem for all concerned, and state some conclusions.

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STEVEN E. BROWN has been representing federal employees for over thirty years, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints.  He has lectured before various groups on these and related topics for the past several years.  His firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public.  The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.

Part one – the problem

Tragic shootings in the workplace, such as the 2006 violence at a U. S. Postal facility in Goleta, CA in which eight people died – including the shooter who was a former employee – remind us about the persistent problem of workplace violence.  Although by all accounts the Postal Service was in no way at fault for that particular tragedy, legal practitioners such as I, who represent Postal and other federal civilian employees regularly, encounter unwise management practices that adversely affect morale and expose workers to the possibility of violence.  The occasional, and catastrophic, shootings at workplaces around the country are just the tip of the iceberg.

Many of these deadly shooting incidents find their origin in the so-called “disgruntled” employee or former employee who somehow gains access to the workplace and opens fire.  Do workplaces engender these violent intentions, or do some employees just have serious emotional problems that lead to such actions regardless of their work situations?

As a practical matter  , the answer is a little of both.  There is an entire area of sociology and criminology dealing with the topic of workplace violence, and this article is not intended to be nor is it a summary or a review of that literature.  The purpose of this article is, rather, to share from the perspective of a federal employment lawyer some of the “stressful” work situations that recur in our practice and lead to various legal claims on the part of labor, management, or both.

What kinds of claims?  Employees file workers’ compensation stress claims, employment discrimination complaints, and wrongful termination/discipline appeals, and retire early for personal reasons or based on disability.  Employers take disciplinary actions, “freeze out” employees by failing to promote them etc., and expend substantial amounts of funds and energy opposing claims filed by employees.

Often the work situation causing problems for labor and/or management can involve several different legal claims, resulting in a complex interaction between the procedures and legal principles involved in the different claims as they go forward.

The way an employer responds to an employee who is injured or disabled can be critical to avoiding results like hurt feelings, litigation, or worse.  The following excerpt from the U. S. Department of Army Course in Occupational Medicine, “Workman’s Compensation and Loss Control”,  is a good statement of how employers can effectively deal with employees presenting with an illness or injury:

 “Health problems frequently present barriers to work, and if the money is somewhat comparable, impaired workers often make trade-offs between working and accepting disability retirement. However, although money is an important motivator, so are feelings of personal satisfaction, success, or recognition, socialization, and power.  If internal barriers such as job dissatisfaction, and external barriers such as lifting requirements can be decreased, the employee may be able to become productive in the workforce.  Enabling employees to be productive members of the workforce is key to saving money in occupational health.”

 The remaining two parts of this article will examine a few typical scenarios and suggest how the problem can be defused before it becomes a legal problem – or even worse poses a potential for workplace violence. 

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1. The author is an attorney, not a psychiatrist or psychologist, and the opinions expressed herein are not medical opinions.
2. These are just some of the most typical legal claims filed in the federal sector.  There are many others, including: [by employees] whistleblower complaints, challenges to performance appraisals or pay scale, union grievances, inspector general complaints; and [by employers] changes of duties or supervision, denials of security clearances, involuntary transfers or denials of transfers, denials of bonuses or awards, etc.