Addressing Workplace Violence: From Collective Bargaining to Constitutional Forfeitures
This Essay has two aims. First, it describes the modern experience of third-party workplace violence in four varied contexts: dollar stores, education, social work, and courthouses. Second, it augments these descriptions by highlighting the web of relevant legal institutions and interventions, some of which are rarely discussed in connection to workplace violence. Dollar stores illustrate the role of the federal Occupational Safety and Health Administration (“OSHA”), namely its use of inspections, citations, and repeat offender programs. Recent litigation by teachers shows the interaction of tort law with workers compensation for injured employees; meanwhile, legislators consider prohibitions against, and privileges for, arming teachers. Social workers move beyond OSHA and seek to address violence through staffing ratios and de-escalation training, formalized in collective bargaining agreements. Finally, it discusses how courthouse violence by individuals already facing criminal charges has justified the deprivation of otherwise-constitutionally protected rights, namely the right to counsel.
Through these four accounts, it moves beyond conceptions of workplace violence that rely only on narrow, oft-cited authorities. Many scholars view workers’ compensation and Occupational Safety and Health (“OSH”) Act as the driving mechanisms for “achieving healthy and safe workplaces.” But that provides an incomplete picture of the levers at play. By looking beyond the Occupational Health and Safety Administration (“OSHA”) and the workers’ compensation system, it exposes the multiple legal authorities influencing violence at work — and the multiple perspectives on how, and whose, safety matters. By looking in both familiar and new corners of the American workplace and governing law, this Essay modernizes our understanding of workplace violence.