Legal Departments Can Take the Lead When Workplace Disaster Hits
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Legal Departments Can Take the Lead When Workplace Disaster Hits
When violence strikes the workplace, legal departments will have a big role in dealing with what comes next.
ALM Media
Updated
In mid-June, at a UPS customer center in the South of Market district in San Francisco, UPS employee Jimmy Lam, 38, opened fire on his colleagues, killing three people and injuring two others. San Francisco police responded to an 8:55 AM report of an active shooter. As they entered the building, Lam killed himself.
When something terrible happens that involves the loss of at life at a worksite, even if the manager is a decorated, former member of SEAL Team 6, all you can expect is [that they] work with emergency responders and coordinate with getting employees out, said Fisher Phillips partner Howard Mavity, co-chair of the firm s workplace safety and catastrophe management practice group. But someone has to step in and basically take over every other aspect.
Sometimes, that person is the general counsel. Crisis response managers and lawyers said legal departments play an important role in these situations. The legal department and the general counsel have to create a crisis plan, designate security leads, develop a communications plan, potentially interact with investigators and insurance companies and, through it all, be careful about litigation that could be filed years after.
UPS did not respond to messages seeking comment on the recent tragedy in San Francisco.
Active shooters in a workplace remain a constant threat in the United States, according to 16 years of data from the Federal Bureau of Investigation. From 2000 to 2016, active shooters targeted at least one workplace a year, and more than 10 businesses suffered active shooter events each year in 2009, 2010 and 2012.
The top priority in managing these situations, said Haggerty LLC chief executive and president James Haggerty, is making a crisis response plan.
There is a sense that: Well, we can t anticipate everything, so let s plan for nothing, Haggerty said. That s like sending a football team on the field and then making up the plays.
Haggerty said legal departments, together with executive management, need to create a simple and clear crisis response plan that can be accessed online and on employee devices, such as phones and tablets. Having a 300-page binder on the shelf is a waste if it never gets read, he noted.
Mavity echoed Haggerty s statements, imploring general counsel and their legal departments to identify key employees to handle a crisis. Table-top exercises, he said, create chances to answer questions that typically get ignored: Who is going to deal with law enforcement? Who is going to reassure uninjured employees that they are safe and that their job is secure? Who will coordinate with insurance companies responding to a shooting? Who will work with government agencies beginning potential investigations?
Harlan Loeb, the global chair of the crisis and risk practice at communications marketing firm Edelman, said part of creating a crisis response plan is to also designate, or hire, an overall owner of security someone who handles physical and cybersecurity for a company and who can be relied upon in a time of crisis.
If that person doesn t exist, the GC can help find them, Loeb said.
He said, because of a general counsel s legal background and potential government relationships, they may know where to look for such a person. Many security chiefs are former FBI agents and former Secret Service members, according to Loeb.
Hiring a security chief also protects a company from what attorneys and other experts described as an unfortunate reality: future litigation.
A security chief can protect a company from allegations of negligence by taking care of small details, Loeb said, such as the placement of security cameras in the right places, taking video at all times. He said missing those details can be used to prove negligence in a future lawsuit.
And in-house lawyers have to be particularly careful about creating attorney-client privileged work during a crisis, Mavity said. He said it is common for a plaintiffs firm, bringing a suit against a company after a crisis, to use discovery efforts to find pieces of information not protected by this privilege as evidence of a failure on part of the company to safeguard employees.
Companies will be reluctant to do a gritty and honest internal root-cause analysis if they re afraid what they find will be used against them in subsequent litigation, Mavity said.
He said in-house attorneys particularly because of their often dual business and legal role have to train their colleagues and internal clients on attorney-client privilege before a crisis hits to prevent any mistakes where this privilege gets blown.
A simple example, he said, is if someone accidentally hits reply-all to an email containing legal advice meant for just a few people.
During the entire process, though, Haggerty said, the legal department needs to work with partners in communications and public relations to deliver statements to the public. Often a lawyer s job is to minimize legal risk, and at times, lawyers are trained to go overboard, and that leads to a say-nothing mentality, according to Haggerty.
But he said that s not the way to do it instead, a legal department should work with its press department to show the company is in control and gathering news as it happens. Sometimes a legal department has to realize when the potential PR damage caused by staying silent outweighs the need to maintain valid legal defenses for a future trial, he added.
He used the example of the recent United Airlines scandal, in which a passenger was bloodied and knocked temporarily unconscious after refusing to leave his seat, for which he bought a ticket.
One of the smartest things [United] did was settle the lawsuit early, Haggerty said. Even though there may have been legal defenses they gave up along the way, reputationally, it wasn t worth it. Sometimes lawyers forget that.
