07 Oct Attacked at Work, What Are My Rights?
Violence is rarely the answer, and this is especially true in the workplace. Yet, physical attacks can and do occur every day. When they happen at work, this creates a whole suite of considerations that can make the experience even more worrisome and problematic.
For example, will the attack result in disciplinary action? Who will get blamed: just one of the people in the fight or both? Who should be liable for any injuries or damages? Should the employer have provided better security, a background check, or done something else to prevent the attack?
Discipline
One of the most complicated issues arising from an attack at work is whether any sort of discipline will flow from the incident. Unfortunately, all too often, the person who has been attacked is disciplined right along with the attacker. This is particularly true if the attacker is a customer or client, in which case the employer often dismisses the employee in an effort to mitigate possible liability.
Unfortunately, the legal issues involved with discipline or termination following a fight can be very convoluted and vary widely from one jurisdiction to another. Employees in unionized workplaces should immediately contact their union representatives. Those in non-union workplaces may face a more untenable situation, in that they might be disciplined or terminated whether the fight was their fault or not. In “right to work” states, employees can be terminated for any reason or no reason at all. As a result, many employers will let go of workers involved in a fight, whether they were they threw the first punch or not.
Even if termination is not the concern, other forms of discipline can also be problematic. In many cases, blame for the fight will be distributed among the involved parties. Absent something clearly one-sided, like a sexual assault or the irrational lashing out of a mentally unstable worker, most employers will likely attribute some of the blame for the fight to both the attacker and the other person as a possible instigator.
Liability
Of course, issues of liability also exist when it comes to a fight at work. Obviously, the person who instigated the attack would have direct liability for the battery. Battery is any unwelcome touching, and the damages resulting from that battery (including medical expenses for injuries suffered, lost wages due to missed work, property damage, etc.) form the basis of any financial award. Additionally, the attacker could face criminal charges for the battery, as well. If the attack has a sexual element, it might become rape or sexual battery, which could carry a heavier criminal sentence and an increased monetary award for physical injuries and psychological harm.
However, beyond the actual attacker, there is also a possibility for liability among other entities. The employer itself is the most obvious target. It may have liability to the victim(s) of the attack under a variety of different legal theories. For example, attacks that occur in the workplace may create liability for the employer on a premises liability theory, whether the attacker was an employee, a customer, or someone else. The employer may also be responsible if the attacker was an employee on the clock during the attack, whether it happened at the workplace or not, thanks to a legal theory that makes employers responsible for the acts of their employees while acting in the course of their duties, also known as respondeat superior. If the employer knew, or should have known of the attacker’s propensity toward violence, and employed that individual anyway, that could create liability for negligent hiring and/or retention. It is this array of legal theories of liability that creates the impulse for employers to dismiss all employees involved in a fight in an effort to minimize additional exposure.
What to do if Attacked at Work?
Whenever an attack occurs, the first thing to do is call the police. Even if the attacker has left the scene, creating an accurate police report can go a long way to establishing your rights in both criminal and civil cases. Also, talk to any witnesses, get their take on what happened, and collect their contact information in case you need to call them as witnesses at a later date.
Once you have left the scene, contact an attorney. A lawyer will be able to advise you about your legal rights in the situation, help to shield you from possible liability in case the attacker said you started the fight or injured him/her while defending yourself, and guide you through the entire legal process from making your demands to collecting your final judgment.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.