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.
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