By an order dated December 26, 2024, ALJ Brian Duncan vacated a general duty clause violation against a security company that provided security services to a mall. In the tragic shooting, a customer shot and killed two people, including a mall security guard employed by the company. In vacating the citation, the ALJ made a number of rulings. First, he rejected the notion that the shooter himself (or a specific incident) could serve as the hazardous condition forming the basis of an OSHA citation. However, he ultimately found that the Secretary established a direct nexus between the work of security guards and the general hazard of workplace violence, opining that “violence at the hands of strangers” was considered plausible by both the company and industry experts and that the Secretary established employer recognition of the hazard of general workplace violence. However, the ALJ then provided a detailed analysis of whether the Secretary met her burden of proof when advancing proposed abatement measures and concluded she did not. Specifically, the ALJ rejected the four abatement measures proposed by the Secretary: (1) developing and implementing an effective workplace violence program including the creation of a threat management team; (2) implementing an effective system to identify, track, and communicate issues related to high-risk people of the mall’s firearms prohibition; (3) developing, training security officers on, and enforcing a strict no-approach policy for high-risk situations; and (4) conducting re-training on workplace violence for security officers and supervisors that includes internal and external risk factors for violence in the retail and security industries.
In rejecting the proposed workplace violence program abatement, the ALJ noted that the Secretary’s position relied heavily on the hindsight of those involved after the shooting occurred but that the company and its security officers had no way of knowing of the shooter’s mental health status, his behavior in the community at large, or any changes to his behavior or psychological state during their encounters leading up to the incident. The ALJ also rejected the creation of a threat management team as not feasible based on the evidence presented, citing factors such as lack of company authority over the Mall’s other stakeholders, such as store owners and employees. Accordingly, the threat management team could not be implemented because security officers were not equipped nor empowered to conduct the full spectrum of threat management strategies. Thus, the Secretary failed to meet her burden of proving that the company’s existing workplace violence training program was inadequate.
With respect to the proposed abatement of a recordkeeping system for identifying, tracking, and communicating issues about high-risk individuals, the Court noted that the company had a system for tracking various incidents. Although the Court agreed that the company could have included more information when available or obtainable, such as physical descriptions, the Secretary failed to show that enhanced record-keeping would have materially reduced the cited hazard.
In rejecting the Secretary’s proposed abatement of training security officers on and enforcing a strict no-approach policy for high-risk situations, the ALJ noted that this abatement required the development of a relationship with local police so that “an immediate and direct notification can be made when repeat offenders or higher-risk persons are observed inside the mall.” However, he found the record did not support that a request for an enhanced relationship with the police department would have materially reduced the risk posed by the shooter (or others like him) who decided to commit a mass public shooting.
Similarly, the ALJ rejected the Secretary’s contention that additional re-training would have eliminated or materially reduced the hazard of the shooter (or others like him) committed to a mass public shooting inside the Mall.
It is clear from the ALJ’s decision that the company did not ignore workplace violence as the Court pointed to many practices and procedures, including training, a written program and procedures, and a suspect identification protocol in his decision. The Court relied on many of these actions to reject the Secretary’s contentions that it could have reasonably done more to materially eliminate the risk of a mass shooting. Ultimately, the Court seemingly recognized that an employer can only take so many reasonable steps to protect against workplace violence when an individual is prepared to engage in a mass shooting. However, as in all of these tragic workplace violence incidents, the OSHA legal liability issue is but a speck when compared to how these effective workplace violence prevention strategies can help save lives, and although risks may be greater in certain industries like security, health care or retail, unfortunately, no business or industry is immune.
The decision can be accessed here.