Workplace violence litigation is not a single legal theory. It arrives through multiple legal frameworks — premises liability, negligent hiring, negligent retention, failure to warn, and negligent security among them — and it can reach organizations that did everything they were required to do under applicable regulation and still face a credible claim.
Understanding the legal theories under which employers face liability for workplace violence incidents is not just a legal exercise. It is the foundation for understanding why program design matters and what “defensible” actually means when a program is put under scrutiny.
The Two Primary Frameworks
Most workplace violence litigation against employers reaches through one of two broad frameworks.
Negligent Security
Negligent security is a premises liability theory. It holds that a property owner or operator has a duty to maintain reasonable security measures for people on the premises — employees, customers, visitors — and that a failure to do so that results in a foreseeable injury creates liability.
The key concepts:
Foreseeability.A premises liability claim typically requires that the injury was foreseeable — that a reasonable property owner in the same position would have anticipated the risk. Foreseeability is established through prior similar incidents on or near the premises, the nature of the business and its clientele, crime statistics for the area, and the observable characteristics of the physical environment.
Reasonable security measures.The duty is not to prevent all violence — that standard is unattainable. The duty is to implement security measures that a reasonable property owner would implement given the foreseeable risks. What is “reasonable” is a fact-specific inquiry, but industry standards — ASIS International standards, CPTED principles, recognized best practices — are the baseline against which conduct is measured.
Causation. The inadequate security must be a proximate cause of the injury. A plaintiff must show that better security measures would have prevented or reduced the harm.
Negligent security claims are most common in Type 1 violence situations — criminal intrusion, robbery, random assault — where the question is whether the physical security of the premises should have deterred or prevented the incident.
Workplace Violence Negligence
The second framework is more specifically focused on the employer's knowledge of, and response to, a threat posed by a specific individual — most often a current or former employee.
The legal theories within this framework include:
Negligent hiring.An employer that hires an individual with a known history of violence or threatening behavior, without conducting reasonable pre-employment screening, may be liable for harm that individual subsequently causes. The employer's knowledge — actual or constructive — of the risk is the central issue.
Negligent retention.An employer that becomes aware of threatening or violent behavior by an employee and fails to take appropriate action may be liable for the harm that follows. The critical element is notice — what did the employer know, when did they know it, and what did they do with that knowledge?
Failure to warn. Where an employer has information suggesting that a specific individual poses a threat to identifiable others, there may be a duty to warn those individuals. The contours of this duty vary by jurisdiction and circumstance, but the general principle has broad application.
Negligent supervision. Where an employer fails to supervise an employee who poses a known risk, and that failure allows the risk to manifest in harm to others, liability may attach.
The common thread in all of these is notice and response. What the employer knew, when they knew it, and what they did about it is the factual inquiry at the center of every negligent retention and failure-to-warn case.
The Standard of Care Question
In litigation, the pivotal question is usually not whether violence occurred — it obviously did. The question is whether the employer's conduct met the applicable standard of care.
Standard of care in workplace violence matters is established through:
- Applicable law and regulation (SB-553, HB-1919, OSHA General Duty Clause, applicable state statutes)
- Industry standards (ASIS WVPI-AA-2020, the American National Standard for Workplace Violence Prevention and Intervention)
- Recognized best practices as established by expert testimony
- The employer's own policies and procedures
An employer whose program meets applicable regulatory requirements and is consistent with recognized industry standards is in a materially different position than one whose program fails both. Neither is immune from liability — but the defensibility of the program is the primary determinant of litigation outcome.
The $3 Million Number
The average jury verdict in a workplace violence negligence case is approximately $3 million. Individual verdicts have reached tens of millions. These numbers are not hypothetical risk — they represent actual outcomes in actual cases.
The factors that drive high verdicts:
Employer knowledge. Juries respond viscerally to evidence that an employer knew an employee was dangerous and did nothing. Documents, emails, and HR records that demonstrate awareness of warning signs followed by inaction are devastating at trial.
Inadequate response.An employer that received a complaint, conducted an inadequate investigation, and returned the subject to the workplace without meaningful intervention presents a compelling narrative for a plaintiff's attorney.
Regulatory non-compliance.In jurisdictions with mandatory workplace violence prevention requirements, non-compliance is evidence — sometimes conclusive evidence — that the employer failed to meet the minimum standard of care. In California, after SB-553, a non-compliant employer in a post-incident case will face this issue directly.
Suppression of reporting.Evidence of a culture that discouraged employees from reporting concerns — directly or by implication — is extraordinarily damaging. The anti-retaliation requirements in SB-553 and HB-1919 exist partly because this is a known systemic failure.
What a Defensible Program Looks Like
A defensible workplace violence prevention program does not eliminate litigation risk. What it does is provide the employer with a credible response to every element of the standard of care inquiry.
Documentation of foreseeable risk. The hazard assessment, done properly, documents that the employer identified and evaluated the risks relevant to their specific environment. This is the foundation of the foreseeability response.
Appropriate security measures. Physical security assessments, implemented corrective measures, and documented security infrastructure demonstrate that the employer responded to identified risks.
A functional reporting system.A documented, accessible reporting mechanism — with genuine anti-retaliation protection — demonstrates that the employer created the conditions for employees to surface concerns.
Documented response to reports. When a concern was raised, what happened? A documented investigation, a threat assessment, a management plan, and a record of the outcome is the factual rebuttal to a failure-to-act allegation.
Trained, named responsible parties. Organizations with named accountability and documented training demonstrate institutional commitment to the program, not just paper compliance.
A WAVR-21-based assessment when warranted.For situations involving a specific concerning individual, a documented WAVR-21 assessment — conducted by a trained professional — demonstrates that the employer applied the recognized methodology rather than relying on informal judgment.
The Role of Outside Counsel
Employment attorneys, outside counsel handling workplace violence matters, and insurance coverage attorneys are frequently the first professionals engaged when an incident occurs or a claim is filed. Their ability to defend the employer depends substantially on the quality of the program that existed before the incident.
Early engagement of threat assessment professionals — before an incident, or immediately after one before the litigation posture is set — substantially improves the available defenses. Post-incident reviews conducted under attorney-client privilege, independent assessments of the existing program, and WAVR-21-based documentation of the pre-incident behavioral history are all tools available to counsel when the relationship with threat assessment expertise exists before it is urgently needed.
Kestralis Group provides litigation support and expert witness services in workplace violence, negligent security, and threat assessment matters — and pre-litigation program defensibility reviews for organizations that want to understand their exposure before a claim is filed. Contact us to discuss a specific matter.
