On Nov. 22, 2022, Andre M. Bing walked into the break room of the Walmart store in Chesapeake, VA with a gun. Before eventually turning the gun on himself, he had left six people dead and several more injured.
Bing had worked for Walmart since 2010 and, at the time of the shooting, was the manager of the crew that restocked the shelves overnight. The people who worked with him claim they had made multiple complaints about Bing’s threatening behavior, but that Walmart did not take action to prevent the shooting.
Jessica Wilczewski, a Walmart employee who witnessed the shooting, claimed that Bing seemed to target certain people.
“The way he was acting — he was going hunting,” she said in an Associated Press article.
James Kelly, a plaintiff in one of the three lawsuits filed against Walmart, claims Bing told him, “I don’t care how big you are. I have something to take care of that.”
Donya Prioleau, another plaintiff in a separate suit, claims Bing recounted violent, graphic stories of animal abuse. He also reportedly asked his co-workers if they had taken the company’s active shooter training and would smile and say nothing, or just walk away when they replied.
On Sept. 10, 2022, Prioleau filed a formal complaint about Bing’s conduct using Walmart’s ethics reporting mechanism. Prioleau’s mother even came to her workplace and told a manager she was afraid for her daughter’s safety because of Bing’s comments and behavior.
According to Prioleau, her mother was told there was nothing that could be done about Bing because “management likes him.” Prioleau’s lawsuit sought $50 million in damages. It was settled earlier this year for an undisclosed amount.
Why didn’t Walmart take action to remove Bing from the workplace? Looking back, it seems incomprehensible. But the shooting in Virginia is just one small part of a nationwide trend of workplace violence perpetrated by employees.
Increase in employee-involved workplace shootings.
Take just a few examples of workplace shootings involving current or former employees.
This is only a sample and only through August 2023:
- In January, a 66-year-old employee shot seven people at a farm in Half Moon Bay, CA. The investigation showed he was upset about being blamed for damage to some farm equipment.
Two employers have since been cited for a total of $164,000 in fines by Cal/OSHA. - In April, a former employee entered a bank in Louisville, KY. He killed five people and injured eight others before he was fatally shot by the police.
- In May, a former employee shot and killed an employee at a Dollar Tree in Lawrence, KY.
The shooter had been accused of stealing, was fired in March, and was apparently angry that he could not exchange some merchandise. The shooter would later be found incompetent to stand trial. - On July 17, in Harvey, LA, a man who had been fired from his job at a shipyard shot and killed two former co-workers before he was shot by sheriff’s deputies at his home.
- At the end of July, a former employee killed his colleague at the restaurant where they worked in College Park, GA. The employees reportedly had an ongoing disagreement.
- Another shooting that captured the nation’s attention occurred in Jacksonville, FL, on August 26. Three people were killed, and the shooter appeared to be motivated by racial bias. A few days later, it was announced that the shooter was a former employee of the same chain of stores where the shooting took place. What other connection, if any, exists between the shooting and his former employment there remains to be seen.
Employer liability.
While mass shootings continue to take the lives of thousands of Americans each year, employers must prepare for how to handle an employee who makes or implies violent behavior. Nonprofits are not immune.
Most employee-perpetrated workplace shootings by are precipitated by credible threats. Employers may disregard these threats out of fear of a lawsuit provoking the disgruntled employee.
According to experts, workplace safety should be the number-one priority for any employer.
“No workplace threat of violence should ever be tolerated,” says Kathy L. Spaniac, partner at ClouseSpaniac Attorneys.
“I would much rather defend a wrongful termination lawsuit filed by a disgruntled employee terminated because they made objectively believed threats, rather than having to defend one or more lawsuits brought by employees, or their grieving families, for harm suffered at the hands of that disgruntled employee.”
Generally, employers are only liable for the conduct of their employees when the employee is acting within the course and scope of their employment, but employers cannot rely on that rule in every situation.
The General Duty clause of the federal Occupational Health and Safety Act (OSHA) provides that employers are required to provide a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”
An employee who makes threats of violence is a known hazard, and failure to act on those threats can create significant liability for an employer.
If an employer is on notice of a credible threat of harm and does not act upon it, it may also face liability under a theory of general negligence, as well as negligent hiring, retention, or negligent training.
Employees who are victims of workplace violence may be also be entitled to benefits under workers’ compensation, as well as a leave of absence.
New legislation in California.
Effective July 1, 2024, most California employers must have a workplace violence prevention plan. Healthcare facilities in California have been subject to this requirement since April 2017. It was implemented following a spike in incidents of workplace violence in those workplaces.
Elements of the plan include developing a mechanism for reporting threats of workplace violence and annual training for employees.
The same bill also adds additional bases for California employers to obtain workplace violence restraining orders.
Reducing the likelihood of workplace violence.
Below is a list of considerations for nonprofit employers to consider when seeking to reduce the threat of workplace violence.
- Establish written policies for responding to employee safety concerns and a zero-tolerance policy for workplace violence (including threats of violence), including a reporting mechanism that is easily accessible.
- Everyone should be trained on the policy, especially supervisors and managers who may be obligated to respond to or escalate employee complaints.
- In union workplaces, negotiate a zero-tolerance workplace violence policy into your collective bargaining agreements as a basis for immediate termination of employment.
- An employee fired for violating a workplace violence policy should be escorted from the workplace and told they cannot return. Some state laws give employers the option of seeking a restraining order to protect the workplace and its employees.
- Workplace policies should include provisions for searching employee property, including on-location property such as lockers as well as personal belongings such as backpacks.
- Without advance notice, employees may have a reasonable expectation of privacy with respect to areas that are locked or secured. It’s important to preserve your right as an employer to get access to these areas if you suspect an employee may have a weapon.
- Establish written policies for responding to employee safety concerns.
- Follow state laws on prohibiting guns in the workplace. Some employers may wish prohibit guns that are otherwise lawfully owned and carried from being brought into the workplace. In some states, this requires following very specific requirements, such as signs being posted. Additionally, employers in some states may not prohibit an employee from keeping a gun in their car if possession of the weapon is otherwise legal.
- Help employees understand the difference between credible threats and negative perceptions that may result from bias towards people with mental illness.
- Establish routine workplace safety training that includes active shooter response.
All employers should review their policies and practices and ensure that they are prepared to take all possible steps to reduce the possibility of deadly violence in their workplaces.
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