Article

A Shattered Peace:
How to Protect Your Staff from Harassment and Violence

In a recent year, 89 restaurant workers died from on-the-job injuries - including 29 who were murdered on the job. The bulk of violent incidents occur at fast-food chains, which saw three deadly shootings over 30 days this summer and a new lawsuit brought by McDonald's employees suggests that some responsibility falls on restaurant owners for failing to protect employees from violent customers.

Independent operators are not immune to these incidents.

Warning Signs of Disruptive Guests

Morally, we may argue protecting employees from violent customers is the right thing to do; however restaurant operators can also face liability for failure to provide a safe work environment. In this article, we review ways to lessen your exposure risk and liability, including recommendations from insurance and security experts. We also explore ways to defuse potentially violent situations in your restaurant.

As public-facing establishments, restaurants tend to receive spillover violence -- incidents that arise when domestic disputes, bar fights, gang violence, or other threats flare up in public. Whether spontaneous or planned, violent outbursts tend to target individuals, rather than the business itself -- but this doesn't help when a violent fight injures an employee, damages property, or harms the restaurant's reputation.

Alex Browning of Corporate Security Resources, a New York City-based security firm, says the most important lesson business owners need to learn is a simple one: "Workplace violence does not discriminate, and can take place in any city, any location, and at any time." While people often think of shootings in schools, Browning says that from 2000 to 2017, "56 percent of active shooter incidents took place at a business."

Understanding that it can happen is the first step. "Recognizing and responding to pre-incident indicators becomes a crucial element of reducing a business' liability," Browning says. This is where awareness-level training of risk indicators, including body language and behavioral signs, can empower employees and reduce anxiety.

To prevent altercations between guests and employees, and to mitigate the many levels of harm arising from violent altercations, operators should train employees on best practices to recognize and manage disruptive customers before things get heated.

Forty percent of restaurants who took part in Restaurant Loss Prevention & Security Association's (RLPSA) survey on disruptive guests reported experiencing at least one disruptive guest per week, with disruptive guests characterized as patrons exhibiting behaviors including:

• Loitering.
• Publicly consuming alcohol or drugs in the restaurant.
• Verbally abusing or shouting at employees or other guests, or otherwise making guests and employees uncomfortable.
• Threatening harm.
• Nonconsensual touching of employees or other customers.

HUB International Limited, a North American insurance brokerage company, notes customers who are intent on violence usually give behavioral or body language cues. Training employees to recognize markers of violence can prevent attacks or provide early alerts, potentially saving lives. Stressed, prone-to-violence individuals may exhibit fight or flight behaviors: Physically leaning forward, tightening the body, or clenching fists, heavy breathing, sweating or redness. Employees should be encouraged to trust their gut: if something seems off, they should let a manager know.

Seventy percent of RLPSA survey respondents say they have a policy on handling disruptive guests and hold regular training for employees. Most operators say they place hard limits on risky behaviors including marijuana use (even in states where it's legal) and nonconsensual touching, and summon police if disruptive customers refuse to leave when asked. To shield employees from combative guests, 20 percent of survey respondents say they don't allow employees to request disruptive guests leave (instead, they require that employees notify law enforcement).

Best practices recommended by RLPSA survey respondents include:

• Using security cameras throughout the restaurant.
• Having managers handle disruptive guests.
• Close or hire uniformed guards during late hours or for special events when disruption may be more common.
• Clearly post policies on prohibitive behaviors (i.e. drug or alcohol use, including alcohol service).
• Play soothing music to keep customers calm.

Having a plan in place to handle disruptive behavior can reduce the odds of things escalating to the point of injury or property damage. By knowing what to do and routinely training staff, you can avoid many threats of violence.

Any type of violent altercation between employees and customers is a public relations disaster, as well as a legal, operational, and HR nightmare. From a legal perspective, liability comes down to whether an operator had knowledge of the circumstances -- and foreseeability of customer conduct is part of foreknowledge. "I didn't think it could happen here" holds low credibility these days.

"Employers need to understand the appropriate response for an act of customer aggression and communicate to employees, in a positive way, about what steps need to be taken," explains Dan Struck, partner at law firm Culhane Meadows. "From the employment practices liability insurance perspective, ignoring [customer aggression] is not a solution."

So yes, it can happen. And yes, you may be held liable. Here's how to protect workers and limit liability regarding three common customer threats: sexual harassment, fights and gun violence.

Sexual Harassment by Customers

A Harvard Business Review study of 76 female college students working in the restaurant industry found that, during a three-month period, the young women reported 226 incidents of sexual harassment, including 85 from customers.

Legal precedent holds that employers may be held liable for sexual harassment from customers, providing that they knew of the issue and had means to prevent it. A 1998 10th Circuit federal court opinion in the case Lockard v. Pizza Hut held a restaurant is liable for harassment by customers if the restaurant "fail[s] to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known."

Title 29 of the Code of Federal Regulations contains the principal set of rules and regulations issued by federal agencies regarding labor. Section 1604.11 of that title states an employer may be "responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action."

The law is clear: Operators need to protect their employees from sexual harassment in the workplace -- from customers as well as coworkers. This underscores the need for operators to institute a comprehensive sexual harassment policy and provide routine training for all employees. In fact, states including California, Delaware, Maine and New York mandate such training. That said, even when not legally required, managers should be trained on laws regarding sexual harassment in the workplace, behaviors that constitute harassment, and how to address issues.

ALWAYS LEARNING…

For manager training on preventing sexual harassment in the workplace, review the following resources on RestaurantOwner.com

Bystander intervention training is useful for sexual harassment and other situations, such as a domestic dispute between an employee and their jealous partner, who comes to the restaurant to air a grudge. In the bystander intervention technique, another employee comes to the aid of the employee who is being harassed and asks for their assistance with something. This simple technique gets the targeted employee out of a bad situation, stops the unwanted behavior, and puts the disruptive guest on notice.

As Erin Wade, chef and restaurateur at Homeroom, a restaurant in Oakland, California, wrote in the Washington Post, restaurant operators may be unaware of harassment employees routinely face. When Homeroom's workers tried to report incidents to their male managers, Wade wrote, "They were often ignored because the incidents seemed unthreatening [when viewed] through a male lens." Wade was blindsided when workers brought the issue up to her.

Homeroom's workers developed a color-coded system to flag predatory guests: yellow for a creepy or potentially disruptive guest, orange for slightly suggestive behavior, like complimenting a worker's appearance, and red for overt harassment (touching, making lewd comments).

Employees would give a color and number to a manager ("red at table two") and the manager would take appropriate action, such as ejecting the customer or taking over the table. A "no questions asked" approach effectively addressed issues of gender bias. Wade noted that most customers "test the waters" before escalating to nonconsensual touch and that, in her experience, women have a sixth sense for detecting unwanted sexual behavior.

Brawls

Operators may think that customer fights are confined to fast food establishments, and while many incidents do happen at fast-food chains (including 200 incidents over 14 months at a single Glasgow McDonalds), fights can break out anywhere. Consider that restaurant brawls made news in 2019 when epic fights broke out over crab legs at buffets in Huntsville, Alabama and Queens, New York.

Fights aren't only bad for your restaurant's reputation, they could cause injury to employees. If employees or customers are hurt in fights, you could face a lawsuit over negligence if you did not take reasonable steps to prevent or break up an altercation.

David D. Van Fleet, Arizona State University professor and author of "The Violence Volcano: Reducing the Threat of Workplace Violence," mentions risk factors that make restaurants vulnerable to violence. These risk factors include late closing or early opening hours, ease of access as a public accommodation, keeping cash on hand, employing young workers who aren't trained in how to respond to emergency situations, and presence of drugs or alcohol (either previously ingested or consumed onsite). While operators of fast food restaurants may experience the majority of brawls, if your establishment is open late, serves alcohol, or keeps cash on hand, you're at risk, too.

Reducing risk starts with recognizing and defusing aggressive behavior. While it may be difficult to remember in heated moments, Dr. Van Fleet recommends always treating customers with respect, even if they are wrong, and speaking in a calm tone of voice to defuse high emotions. "Sometimes to prevent violence, a concession has to be made. [If] the customer feels the order isn't correct, give them a correct one at no cost -- a minor cost to the restaurant to prevent a major violent incident which could be more costly."

Security cameras should be used inside and outside. Cameras protect workers, but they also provide evidence, which can be helpful in defending allegations of negligence if, for example, camera footage shows that your employees took appropriate actions regarding disruptive guests.

Gun Violence

Gun violence comes in two flavors: targeted incidents, either toward the restaurant (i.e. as part of a robbery) or an individual (like a gang-based shooting) and mass shooting incidents, where an active shooter opens fire indiscriminately. Sadly, restaurant operators and front-line employees are at significant risk of targeted and indiscriminate gun violence.

Shootings come with many negative consequences. They include property damage to the premises, injury or death of employees, and interruption to the business while law enforcement investigates the shooting. There's also a significant risk of reputational harm, if patrons visit other restaurants because they no longer feel safe in your establishment. In addition to property damage and injuries, there are lingering emotional and psychological consequences to a shooting, such as emotional distress of workers who witnessed the shooting, which may affect productivity.

As Julie Quinn, a partner with Quinn Williams, a Los Angeles-based public policy firm specializing in homeland security, emergency planning, and crisis management firm, notes, active shooter trainings help employees think through how they would react during such an incident. This can increase their response time during a violent event, potentially saving lives. Training can also reduce employee anxiety by providing employees with actionable plans to initiate in the event of a shooting.

To protect employees and limit liability, Quinn advises creating an emergency action plan (see below) and practice it regularly so employees know what to do and where to go during a shooting. Keep up-to-date contact information for all workers, which can be shared with authorities after an incident. Since the workplace is the most common site for mass shootings, operators should also consider the likelihood that current or former employees could harm the restaurant.

With high rates of turnover in restaurants, there's a strong chance that not every worker will know how to handle customer violence or harassment, so consider ways to revisit training initiatives, whether by posting procedures in employee locker rooms or bathrooms, or making customer violence part of pre-shift meetings. Whenever gun violence, assault, disruptive guest behavior, or sexual harassment comes up in employee meetings or training, document it. Operators who keep records of relevant announcements and paperwork can demonstrate their good faith efforts in communicating risks and safety procedures to employees, which decreases the odds an operator will be found negligent.

Insurance Advice

"Employers need to think more seriously about the safety of employees, be more aware of their potential exposures and have a plan for responding to issues" that includes insurance coverage, Struck recommends.

Selecting the right insurance to reduce risk has meant cobbling together protection from a patchwork of policies, including worker's compensation, general liability, liquor liability, or directors and officers liability, which shelters operators from personal losses if the restaurant is sued. This situation is hardly ideal for busy operators who want peace of mind.

Whenever there's "physical injury during the course of the employee carrying out his duties in the workplace, there may be worker's compensation coverage available," says Struck, noting this includes injuries resulting from customer violence. That said, this coverage is hardly comprehensive: "Even in the event of an accident, worker's compensation may not cover all of your employee's necessary medical bills," says Adam Guild, CEO of Placepull.com, a restaurant marketing firm.

Mental health and emotional distress, which are common after witnessing violent incidents, are covered under worker's compensation in some states, but not others. Grief counseling, which may help employees heal if a colleague is killed on the job, generally isn't covered. HUB International adds that worker's compensation usually caps indemnity benefits to a weekly wage, which may not be sufficient to cover pay if a manager is injured in an altercation.

General liability insurance coverage can help in some incidents, such as property damage or third-party bodily injury from a violent customer, but only covers shootings if there's a lawsuit and either the attacker or the operator is found at fault -- something that could take years. Even if your policy is triggered, costs arising from a violent incident can surpass policy limits.

Other policies step in to fill gaps: Assault and battery coverage pays legal fees, lost wages, and other expenses resulting from violent assaults at your restaurant. Employment Practices Liability Insurance can protect against certain incidents, including sexual harassment by customers. Liquor liability insurance, which may be required by state law for any operation that sells liquor, can provide additional protection from alcohol-fueled altercations. Business interruption insurance can help operators meet payroll and pay the bills during times of temporary closure, such as to fix property damage after a violent incident. Insurance brokers can walk operators through policy types, coverage, and exclusions.

Operators may want to consider a relatively new type of coverage, which provides comprehensive protection in the event of gun violence: Workplace violence or active shooter coverage. The exact policy name varies by carrier, but active shooter policies usually cover things like mental anguish, bodily injury, crisis management, and biological cleaning and sanitizing -- the essentials that help operators take care of employees and get the restaurant up and running after a shooting.

Acting shooter policies kick in in the immediate aftermath of an incident -- right when benefits are needed most. Other advantages include a single deductible and claims process. "Unfortunately, to the extent [gun violence] continues to be a problem, or becomes a more significant issue, we might see additional products being offered by insurers," Struck says. For now, this is what's available. When choosing coverage, Struck says "it's always very important to look at the scope of what is offered and how it matches up with the risk, how it responds to insured's needs."

See Something, Say Something

When asked for best practices to reduce operator liability for customer violence, Struck says to "be more vigilant" first and foremost. Operators who are vigilant about risks, liabilities, types of claims, and potential exposure can make informed decisions on what coverage can best address their risks or cover their liability for protecting workers from violent customers.

SIMPLE EMERGENCY ACTION PLAN

Before a Threat, Prepare Your Employees and Yourself.

• Develop policies and hold training on sexual harassment, disruptive guests, and acting shootings, so all employees know how to handle threats.
• The Department of Homeland Security offers free resources on preparing for an active shooter, which are available in multiple languages. DHS resources provide active shooter profiles and other resources for creating an emergency action plan and holding employee training. These resources may also help operators recognize and respond to other types of violence.
• You'll want business documentation handy so you can file a claim after an incident, even if the restaurant in inaccessible. Paperwork to have on hand (off-premises in a secure location) includes profit and loss statements, sales forecasts and statistics, invoices, and purchase orders. During a threat Run, hide, fight is the common advice given during shooting events.

RUN: EVACUATE TO A SAFE PLACE IF IT IS SAFE TO DO SO.

• Always be aware of your environment.
• Know the nearest exit and quickest path to safety.
• Leave immediately and don't stop to get your belongings.
• Help others escape if you can.
• Warn anyone you pass.
• Call 911 when you are safe.

HIDE: SHELTER IN A SAFE HIDING PLACE OUTSIDE OF THE SHOOTER'S VIEW.

• Don't hide in groups; spread out.
• Lock or barricade the door to deny the shooter entry.
• Close blinds and turn off lights.
• Turn off your phone and silence the ringer, so the light doesn't give you away.
• If it's safe to do so, text 911.
• Stay in place until law enforcement has the scene under control.

FIGHT: THIS IS A LAST RESORT, ONLY WHEN YOUR LIFE IS IN DANGER AND YOU CAN'T FLEE.

• Fight back to disrupt or incapacitate the shooter.
• Improvise weapons from what's on hand, such as heavy pots or fire extinguishers.
• Yell to warn others of the attack.

CALLING 911: WHEN CALLING 911, EMPLOYEES SHOULD PROVIDE AS MANY DETAILS AS POSSIBLE, INCLUDING:

• Their location.
• The shooter's location.
• A description of the shooter.
• The number and type of weapons.
• The number and location of people affected.
• Any context-specific information to help law enforcement, such as actions taken to disarm the shooter. After a threat. These instructions will help keep employees safe after an incident.

STAY CALM WHEN LAW ENFORCEMENT ARRIVES.

Officers may be trying to subdue the threat using guns, tear gas, pepper spray, or other weapons, and need to concentrate. Pointing, yelling, or screaming can distract officers from securing the scene.

• Drop anything you're holding and keep your hands visible, fingers spread.
• Follow any instructions given by law enforcement.
• Get to safety first, and then tend to your medical needs.
• Next, help coworkers who may be injured.
• Apply pressure to wounds.
• Use a tourniquet, if you know how.
• Avoid posting anything on social media in the aftermath of an incident.