Defensible Documentation of Threat Cases
December 8, 2014
If a serious act of work-related violence occurs, the physical documentation of any involvement by the employer will be quickly requested by various stakeholders. OSHA will require all related documentation if someone is killed. The employer’s legal counsel and management team will want all documentation compiled. The ubiquitous plaintiff attorneys that inevitably show up will demand that all documentation be produced through the court. Media will seek out any documentation that is reportable. Most of these stakeholders will not be your friend.
While it isn’t completely true, the adage that “you are only as good as your documentation” certainly applies in the aftermath of a serious workplace violence incident.
A Threat Case Gone Bad
Since beginning threat management consulting in 1988, Crisis Management International (CMI) has been sued only one time following an act of violence. Long story short, an employee of a Fortune company made a threat to kill if he was fired. It was quickly determined that he was psychotically delusional, e.g., aliens controlling his mind, FBI followed his every move with microphones, and his supervisor was allegedly spying in his bedroom window at night. Paranoid, psychotic, threat to kill – you get the picture.
The intervention was determined between our threat of violence consultant (TOVC) and company management. It was decided that the company would leverage him into treatment – with a hand-picked, local psychiatrist – by threatening job dismissal if he didn’t comply and cooperate. The threatening employee agreed to go. After being stabilized, the company planned to fire him, but he would continue post-termination treatment with the psychiatrist to monitor and help him land on his feet.
Six weeks later, the psychiatrist had established a good therapeutic rapport, successfully medicated the employee . . . and ultimately deemed the employee as “fit-for-duty.” So, the employer decided to change course and bring him back to work instead of follow the plan of terminating his employment following stabilization. By this time our threat consultant had long been released from the case by management.
As we found out later, this previously threatening individual reportedly became a “model” employee. Things went well over the next six years. Meanwhile, the manager who brought him back on the job had retired. Another manager involved in bringing him back had died of natural causes in the interim. For six years, it went well. But, then things changed . . .
Six years after the initial management intervention and psychiatric treatment, the employee (now off his medication) came to the workplace and fatally shot his supervisor and six coworkers. CMI’s records were immediately summoned. OSHA filed charges against the company for negligent workplace violence training and preparedness. The local newspaper reported the OSHA charges on the front. Soon, plaintiff attorneys started lining up at the courthouse to file civil charges of negligence. The company and involved managers (individually) were sued, along with the psychiatrist, the psychiatric clinic, and CMI whose only role – six years earlier – was to help the company in referring the threatening individual to psychiatric care and strategize how to terminate and stabilize the employee (ultimately not followed by the company).
When the shooting occurred, one manager was already dead of natural causes (as previously mentioned) and the employee’s supervisor was killed at gunpoint. The retired manager who was involved in the original threat conveniently couldn’t remember anything about the situation and very little documentation could be found. Ultimately, the defense of the case rested on the documentation of Crisis Management International (CMI), the threat consultancy brought in to help address the initial threat.
To their credit, OSHA dropped their charges when they saw the CMI documentation and a workplace violence training tape by this consultant that was recorded for a small number of managers in Guam. The local newspaper reported that OSHA had dropped the charges (on the front page, to their credit – these things usually end up at the bottom of an inside page, if at all). Ultimately, it was the documentation that saved the company from reputational and liability claims of negligence, although they were successfully sued by a multitude of plaintiff attorneys.
Lesson Learned: Following a serious incident of workplace violence, every shred of documentation that can be collected and compiled will be fair game for various stakeholders who are looking for blame and negligence.
Defensible Documentation Guidance
Team Scribe: Each time your TRT gets together to address a threatening situation, start by assigning someone who will be in charge of developing an official set of documentation for each case. This role can be fulfilled by a TRT member or a trusted support staff person. In the same structured format for each case, the Team Scribe will be in charge of documenting the Threat Response Team’s decisions and actions. All documentation by team members should be turned into the scribe at an appropriate time(s), for compilation and purging of all extraneous notes. Remember that email and other electronic forms of communication are potentially discoverable. Consider old-fashioned pen and paper note taking by anyone other than the scribe. Some information must be retained outside the official and single case documentation, e.g., HR will need to maintain pertinent information in their employee files. When additional notes are to be maintained outside the TRT documentation, the team scribe (or other appropriately assigned manager) should make sure there are no inconsistencies in the various sets of documentation.
Defensible Documentation: The TRT’s Scribe will be assigned the responsibility for compiling and maintaining the organization’s threat management documentation. Only one set of official documentation should be developed and maintained for each case. It’s the random notes in the top of a supervisor’s drawer (for example) that can cause dire consequences for the organization. Meanwhile, if a threat consultant is involved, it is that consultant’s job to document the case in an integrated manner that will reasonably help to defend the client organization.
Documentation should be clear, legible and thorough. Write documentation as if you were writing every word to a jury. Document significant decisions and actions, and why they took place. It may also be important to document why something did not take place. If a decision was made to defer or omit an action(s), it will be helpful to show the reasoning and intent.
It is important to document important decisions, actions, and outcomes. Make sure the timeline is included to show when each took place. This will help to establish what the TRT knew at what times, which can help with defensibility.
The most frequently omitted component in defensible documentation is often the most important. While decisions, actions and outcomes are important, it’s the “why” that will help make your documentation defensible.
Case in point: Let’s assume a terminated employee makes a threat to kill his supervisor during a termination meeting. The organization deems the threat situation to be serious enough to place off duty police officers and additional personnel from a guard service at the workplace. This security detail is onsite for two weeks with no sign of the threatening ex-employee. Employees are expressing fear and concern over the presence of law enforcement and additional guards, feeling there is risk the company isn’t telling them. The cost is quickly mounting for these additional security services that is not included in the budget. So, management decides after two weeks to disband the additional security services. The next day, the threatening ex-employee comes in a shoots his former coworkers and supervisor.
In this case, there will be immediate questions about why the additional security was abandoned. If it wasn’t documented prior to the shooting, the company will find itself on the defensive. Reasons for stopping the additional security will be less credible after the shooting than if the rationale was documented prior to the incident. Don’t be tempted to backtrack with documentation after an incident has occurred. There are forensic methods to determine if documentation is legitimate or created after the fact. If anyone in the company is caught “cooking the books” after an incident occurs, your crisis just exponentially escalated in severity, longevity and cost. It’s better to be disciplined about documentation as a part of your Threat Response Team protocol during the threat response phase.
Reasonable Person Test: So, what should be documented about “why” the company called off the additional security services after two weeks? The documentation should be able to pass the Reasonable Person Test. This means a reasonable person would look at the documented rationale and come to the conclusion that the decisions and actions taken by management at the time made sense and were reasonably prudent.
One “why” that should never be documented is that a decision was made because a given action was too expensive. The company doesn’t want to be in a position where people were harmed or killed and it appears that management was too cheap to protect people and other core assets of the organization. Profit before the well-being of people causes outrage. Plaintiff attorneys, investigative reporters, and others will want to show the company what “expensive” really looks like if they believe the company didn’t take proper precaution because of money.
While cost is a legitimate concern, it should not be documented as a reason for taking workplace violence preventive actions or inactions. In this case, “reasonable” could be that the additional guard services were causing employee concerns and fear that the workplace was not safe. Additionally, there had been no signs of a vengeance by the ex-employee for the two weeks following the termination. Morale was affected with employees believing the company wasn’t being transparent about why the additional security was still present several days after the termination. Possibly, there was a fear that if the ex-employee heard that guards were still on site several days after the termination, he might perceive it as defamatory to his character, which could provoke him. These “whys”, when properly documented prior to the incident, place the company and its management in a much more defensible position than if only the decisions or actions are documented.
Components of Defensible Documentation
- Known fact pattern of the situation (unsubstantiated facts should be listed as unverified)
- Time line of strategic decisions and actions taken by the multidisciplinary Threat Response Team (minimum representation by internal or external professionals with expertise in legal, corporate security and human resources)
- Rationale of why the TRT made pertinent decisions and took their chosen actions/inactions
It is recommended that the workings of the TRT and all resultant materials be treated with appropriate care and confidentiality. Only those with a valid need-to-know should be informed of the TRT’s activities and findings. Possibly, the company’s legal counsel should review and store the single set of documentation for each case. All documentation should be carefully safeguarded and secured according to the company’s document storage policies.
Ultimately, the TRT’s documentation should chronicle and defend the decisions and actions of the team. Carefully constructed documentation can serve as an effective defense tool in the wake of a violent incident showing prudent decision-making and actions taken. Conversely, incomplete or inadequate documentation will give rise to potential claims of negligence, ineffectiveness, and blame.
Consider having an outside professional resource review the documentation from a random sample of threatening cases your organization has handled in the past. Review this documentation as if a serious workplace violence incident had occurred relating to this case. Remember, the litigation against CMI was on a case that had been closed out at the company’s request six years earlier. Determine the weaknesses in your present documentation and establish a structured method to significantly enhance your protocol. As the adage says, “You are only as good as your documentation” if challenged in the future about your actions today.