February 1, 2013

Family of shooting victim sues Accent Signage

Posted in Background Checking, Bullying, Firearms / Guns, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision, Physical Contact, Workplace Violence tagged , , , , , at 6:04 pm by Tom Jacobson

Kare 11 and NPR are reporting that the family of Jacob Beneke, who was shot and killed in the Sept. 27, 2012 Accent Signage shooting incident in Minneapolis, has sued the company and the estate of the shooter, Andrew Engeldinger.  The twenty-page complaint, which has been filed in the Hennepin County District Court, alleges six separate claims, including that Accent negligently supervised and/or retained Engeldinger.

Whether the Beneke family will ultimately prevail on any of its claims remains to be seen, as the case will likely take months, if not years, to work its way through the court system. Meanwhile, the case gives us a chance to take a look at what is  “negligent supervision” or “negligent retention” in the employment context.

Generally speaking, these claims arise when an employer knows or should know that an employee is violent or aggressive and might engage in conduct that would injure others. Thus, the focus in such cases is mostly on what the employer knew — or should have known — about the violent propensities of the employee who later hurts someone. If the evidence supports that element, then it can be said that the employer owed a duty to protect others from the employee’s threat of harm. If the employer had that duty, then the focus becomes whether it breached that duty by failing to take precautions to protect others and whether or not that breach caused the harm suffered by others.

The Beneke case is not the first time the Minnesota courts have grappled with a negligent supervision/retention claim in the context of a workplace shooting. In 1993 the Minnesota Court of Appeals addressed it in the case of Yunker v Honeywell, Inc., which was also a case where the family of a workplace shooting victim sued the employer (Honeywell) for negligence. There, the Court held that because there was evidence suggesting that the shooter had a history of harassing and threatening co-workers, angry confrontations, challenging co-workers to fight, and scratching “one more day and you’re dead” on a locker door, there was enough evidence to put Honeywell on notice that the employee posed a risk of harm to others. Thus, the Court said, Honeywell owed a legal duty to protect others from this employee.

What you need to know: When an employer knows or should know that an employee poses a risk of harm to others, the employer owes a duty to its other employees to take reasonable precautions to protect them. Whether that duty exists, and what precautions are needed, vary on the facts and circumstances of each situation and workplace. To be proactive, employers need to recognize the signs of potential violence and be prepared to take steps to prevent it from happening.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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September 14, 2011

A poke is no joke

Posted in Misconduct, Physical Contact, Single Incident, Unemployment Benefits, Workplace Violence tagged , , , at 10:01 am by Tom Jacobson

In a case involving a workplace “poking” incident, the Minnesota Court of Appeals has ruled that there is no “single incident” exception to employment misconduct under the Minnesota Unemployment Insurance Law.

The case, Potter v. Northern Empire Pizza, Inc., involved Roger Potter and his coworker, Dylan Kaste, both of whom were employed as Domino’s Pizza delivery drivers in the Fargo-Moorhead area.  While on the job, Kaste grabbed Potter’s keys (which were lying near a delivery bag), yelled at Potter, then “threw” the keys onto a desk.   Potter got upset, and later in their shift, he poked Kaste in the side as Kaste passed by.  Kaste “spun around” and yelled, “you suck.” The company discharged Potter the next evening and suspended Kaste. The only reason for Potter’s termination was the single poking incident.

Potter began collecting unemployment benefits, but the Minnesota Department of Employment and Economic Development (DEED), later determined he was ineligible for benefits and ordered him to repay the benefits he had received. An Unemployment Law Judge (ULJ) agreed with DEED’s decision, and Potter appealed his case to the Minnesota Court of Appeals.

The main issue before the Court was whether the single poking incident was misconduct that disqualified Potter from eligibility for unemployment benefits. The Court first summarized the “rise and fall” of the “single incident exception” under the Minnesota Unemployment Insurance Law and ultimately concluded that the exception no longer exists:

The former single-incident or hothead-incident exception to the definition of employment misconduct no longer exists and employers may reasonably expect employees to refrain from engaging in even single acts of combative physical contact. The single incident of Potter intentionally poking his coworker in the ribcage constitutes employment misconduct. Because no exception to Potter’s employment misconduct applies, we affirm the ULJ’s determination that Potter is ineligible to receive unemployment benefits.

However, the Court also noted that although there is no “single incident exception,” the law still requires a ULJ to consider whether a discharge was for “only a single incident” when determining whether misconduct occurred.

For employers and employees and employers alike, the lesson is that when at work, a poke is no joke:  even if it is a single combative act, it can be misconduct under the Minnesota Unemployment Insurance Law.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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