2222222222

Workplace Violence

Workplace Gun Deaths Becoming More Commonplace

Homicides and suicides in U.S. workplaces are increasing year over year.
By: | March 28, 2018 • 4 min read

A convenience-store worker escaped physical harm when a robber pointed a gun at him, only to die 15 months later when the gunman returned — intent on preventing the worker’s court testimony.

As the worker walked to a parking lot behind the Southern California 7-Eleven where he worked, a dark SUV with an unobstructed view of the store followed. The 23-year-old employee was shot to death near his car.

Advertisement




It is unclear whether the robber or the robber’s girlfriend pulled the trigger. Evidence indicates both were present during the murder.

What is clear, experts said, is that despite attention to high-profile mass shootings, like the one at Marjory Stoneman Douglas High School that sparked recent anti-gun violence protests, most workplace-related homicides stem from domestic violence, following the victims to their job, suicides or robbery-related incidences like the 7-Eleven worker’s murder.

“While we get the big spectacular media coverage from shootings and mass attacks, historically that has not been the leading cause of death for shootings, but actually it’s the accidental deaths,” said Frank Figliuzzi, a former FBI assistant director and chief operating officer who consults on workplace violence at ETS Risk Management.

In general, accidental shootings, including those at home, while hunting or at work, account for the highest number of gun deaths, Figliuzzi said. If you are going to carry a weapon to protect your home or workplace, train in gun safety, he advised.

Frank Figliuzzi, COO, ETS Risk Management; former FBI assistant director for counterintelligence

“While we are talking about the topic of risk and guns and robbery, don’t forget — gun safety is an issue. And accidental deaths, whether at home or place of work, are a real concern,” Figliuzzi said.

Overall, the latest data available shows a spike in workplace homicides. They increased by 83 cases to 500 in 2016, the highest homicide total since 2010, according to the U.S. Bureau of Labor Statistics. Suicides increased by 62, to a total of 291, during the same year.

The most likely form of workplace violence occurs when a stranger, such as a robber, walks into a business, Figliuzzi said. “So it’s not always employee against employee.”

That squares with 2012 research findings from NCCI Holdings Inc. Back then, NCCI found that despite news headlines reporting workplace homicides as crimes of passion committed by coworkers, most workplace murders resulted from robberies.

NCCI, a workers’ comp research and rating organization, has not updated its research on the topic, a spokesman said.

A 2016 NIOSH blog posting also states that robbery related homicides are the leading cause of death for retail workers. Among them, convenience store workers suffer from homicides at a rate that is seven times greater than for workers in other industries.

Convenience store workers suffer from homicides at a rate that is seven times greater than for workers in other industries.

The death of Roshan Bhandari, the Southern California 7-Eleven convenience-store worker killed walking to his car, was ultimately related to a robbery.

In 2012, his parents sued the individual 7-Eleven and the franchise Bhandari worked for, claiming negligence for failing to provide a security guard at the store where their son worked.

They argued the employer knew the store and surrounding area experienced high crime, including multiple store robberies, and was therefore negligent in failing to provide proper security.

The defendants countered they did not have a duty giving rise to negligence, because Bhandari’s murder was not “foreseeable” nor “preventable” — key pieces of California’s legal requirements for finding a duty to prevent third-party criminal acts.

The court found that past robberies at the store were not similar to murder and store supervisors did not know Bhandari would be a murder target. The court also noted the homicide occurred in an alley behind the store and not on 7-Eleven premises. The court granted the defendants summary judgment.

Earlier this year, California’s Second Appellate District agreed the trial court’s ruling favoring the defendants was appropriate. In its finding, the appeals court rejected a plaintiff argument that the employer was also negligent because the employer lacked workers’ compensation insurance.

Advertisement




“Plaintiffs’ failure to plead this theory in their complaint, or to otherwise raise it in the trial court, means we will not consider it now,” the appeals court stated in its Rajendra Bahadur Bhandari v. 7-Eleven opinion.

An attorney representing Bhandari’s parents did not return a telephone call.

However, David B. Shapiro, an attorney at Lewis Brisbois who represents the defendants, said the plaintiffs have requested that California’s Supreme Court hear their appeal.

Court records, meanwhile, show the robber implicated in Bhandari’s death received a 15-year prison sentence for the armed robbery, despite Bhandari’s inability to testify because of his death. Records could not be found for any murder prosecution. &

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.

More from Risk & Insurance

More from Risk & Insurance

Risk Focus: Workers' Comp

Do You Have Employees or Gig Workers?

The number of gig economy workers is growing in the U.S. But their classification as contractors leaves many without workers’ comp, unemployment protection or other benefits.
By: and | July 30, 2018 • 5 min read

A growing number of Americans earn their living in the gig economy without employer-provided benefits and protections such as workers’ compensation.

Advertisement




With the proliferation of on-demand services powered by digital platforms, questions surrounding who does and does not actually work in the gig economy continue to vex stakeholders. Courts and legislators are being asked to decide what constitutes an employee and what constitutes an independent contractor, or gig worker.

The issues are how the worker is paid and who controls the work process, said Bobby Bollinger, a North Carolina attorney specializing in workers’ compensation law with a client roster in the trucking industry.

The common law test, he said, the same one the IRS uses, considers “whose tools and whose materials are used. Whether the employer is telling the worker how to do the job on a minute-to-minute basis. Whether the worker is paid by the hour or by the job. Whether he’s free to work for someone else.”

Legal challenges have occurred, starting with lawsuits against transportation network companies (TNCs) like Uber and Lyft. Several court cases in recent years have come down on the side of allowing such companies to continue classifying drivers as independent contractors.

Those decisions are significant for TNCs, because the gig model relies on the lower labor cost of independent contractors. Classification as an employee adds at least 30 percent to labor costs.

The issues lie with how a worker is paid and who controls the work process. — Bobby Bollinger, a North Carolina attorney

However, a March 2018 California Supreme Court ruling in a case involving delivery drivers for Dynamex went the other way. The Dynamex decision places heavy emphasis on whether the worker is performing a core function of the business.

Under the Dynamex court’s standard, an electrician called to fix a wiring problem at an Uber office would be considered a general contractor. But a driver providing rides to customers would be part of the company’s central mission and therefore an employee.

Despite the California ruling, a Philadelphia court a month later declined to follow suit, ruling that Uber’s limousine drivers are independent contractors, not employees. So a definitive answer remains elusive.

A Legislative Movement

Misclassification of workers as independent contractors introduces risks to both employers and workers, said Matt Zender, vice president, workers’ compensation product manager, AmTrust.

“My concern is for individuals who believe they’re covered under workers’ compensation, have an injury, try to file a claim and find they’re not covered.”

Misclassifying workers opens a “Pandora’s box” for employers, said Richard R. Meneghello, partner, Fisher Phillips.

Issues include tax liabilities, claims for minimum wage and overtime violations, workers’ comp benefits, civil labor law rights and wrongful termination suits.

The motive for companies seeking the contractor definition is clear: They don’t have to pay for benefits, said Meneghello. “But from a legal perspective, it’s not so easy to turn the workforce into contractors.”

“My concern is for individuals who believe they’re covered under workers’ compensation, have an injury, try to file a claim and find they’re not covered in the eyes of the state.” — Matt Zender, vice president, workers’ compensation product manager, AmTrust

It’s about to get easier, however. In 2016, Handy — which is being sued in five states for misclassification of workers — drafted a N.Y. bill to establish a program where gig-economy companies would pay 2.5 percent of workers’ income into individual health savings accounts, yet would classify them as independent contractors.

Unions and worker advocacy groups argue the program would rob workers of rights and protections. So Handy moved on to eight other states where it would be more likely to win.

Advertisement




So far, the Handy bills have passed one house of the legislature in Georgia and Colorado; passed both houses in Iowa and Tennessee; and been signed into law in Kentucky, Utah and Indiana. A similar bill was also introduced in Alabama.

The bills’ language says all workers who find jobs through a website or mobile app are independent contractors, as long as the company running the digital platform does not control schedules, prohibit them from working elsewhere and meets other criteria. Two bills exclude transportation network companies such as Uber.

These laws could have far-reaching consequences. Traditional service companies will struggle to compete with start-ups paying minimal labor costs.

Opponents warn that the Handy bills are so broad that a service company need only launch an app for customers to contract services, and they’d be free to re-classify their employees as independent contractors — leaving workers without social security, health insurance or the protections of unemployment insurance or workers’ comp.

That could destabilize social safety nets as well as shrink available workers’ comp premiums.

A New Classification

Independent contractors need to buy their own insurance, including workers’ compensation. But many don’t, said Hart Brown, executive vice president, COO, Firestorm. They may not realize that in the case of an accident, their personal car and health insurance won’t engage, Brown said.

Matt Zender, vice president, workers’ compensation product manager, AmTrust

Workers’ compensation for gig workers can be hard to find. Some state-sponsored funds provide self-employed contractors’ coverage.  Policies can be expensive though in some high-risk occupations, such as roofing, said Bollinger.

The gig system, where a worker does several different jobs for several different companies, breaks down without portable benefits, said Brown. Portable benefits would follow workers from one workplace engagement to another.

What a portable benefits program would look like is unclear, he said, but some combination of employers, independent contractors and intermediaries (such as a digital platform business or staffing agency) would contribute to the program based on a percentage of each transaction.

There is movement toward portable benefits legislation. The Aspen Institute proposed portable benefits where companies contribute to workers’ benefits based on how much an employee works for them. Uber and SEI together proposed a portable benefits bill to the Washington State Legislature.

Advertisement




Senator Mark Warner (D. VA) introduced the Portable Benefits for Independent Workers Pilot Program Act for the study of portable benefits, and Congresswoman Suzan DelBene (D. WA) introduced a House companion bill.

Meneghello is skeptical of portable benefits as a long-term solution. “They’re a good first step,” he said, “but they paper over the problem. We need a new category of workers.”

A portable benefits model would open opportunities for the growing Insurtech market. Brad Smith, CEO, Intuit, estimates the gig economy to be about 34 percent of the workforce in 2018, growing to 43 percent by 2020.

The insurance industry reinvented itself from a risk transfer mechanism to a risk management mechanism, Brown said, and now it’s reinventing itself again as risk educator to a new hybrid market. &

Susannah Levine writes about health care, education and technology. She can be reached at [email protected] Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]