Some businesses, in their training for traumatic possibilities such as active shooters or robberies, will stage mock hold-ups or active shootings. These events can seem realistic to the unwitting employee participants, and sometimes people get hurt – physically, mentally or both.
Are these staged disasters a necessary part of employee preparedness? Or does it constitute intentional infliction of harm? While employee training for dangerous situations is warranted, there are no evidence-based studies that prove realistic unannounced realistic drills are helpful.
Whatever the motivation, people get injured in these mock robberies and active shooter drills. And when they do, who pays? Is it workers’ compensation (which generally does not pay for injuries that are solely psychiatric), or can the employee bring a suit against the employer for intentional infliction of emotional harm?
There is a big difference in compensation if workers’ compensation is not the sole remedy.
Different courts in different states have answered this question in a variety of ways. Here are just a few examples:
KATHY LEE v. WEST KERN WATER DISTRICT (2016)
In 2011, supervisors of the West Kern Water District in California decided to see how female employees would react to a staged robbery.
They gave reasons for male employees to be away from the office, and then the quality control manager, Gary Hamilton, disguised with a mask, sunglasses and a hat, approached employee Kathy Lee. He put a bag on the counter and pointed to it in a threatening manner. On the bag was written “I HAVE A GUN. PUT YOUR MONEY IN THE BAG.” The would-be robber saw Ms. Lee reach for the alarm button, and pounded on the counter, pointing again at the bag. Fearing for her life, Ms. Lee put money in the bag. Hamilton ran out of the office. Ms. Lee wrote down his description, and the direction he ran (applying prior training). Then the other supervisors came in to say the robbery was simulated.
I guess Kathy Lee learned her lesson. She was traumatized – crying, shaking and nauseous. She went home and used up all her sick leave and vacation time as she received psychological treatment for depression, nightmares, headaches and ongoing nausea.
The police were not aware of this exercise in advance. Someone left a voice mail at the station to one officer – but that person was on vacation.
The police chief, Edward Whiting, testified that the mock robbery was dangerous, and he would have stopped it if informed. He noted the possibility of someone having a heart attack, physical injuries to fleeing employees, and a shooting by an armed bystander or police officer.
Kathy Lee filed a claim in district court for intentional infliction of emotional distress and assault. The employer asked to dismiss the claim on the basis workers’ compensation was the sole remedy. The judge did not agree and let the case go forward. A jury then awarded Ms. Lee $360,000.
LOPEZ V. CATHOLIC CHARITIES 2023
Sandra Lopez was in her office at Catholic Charities in Omaha, Nebraska in May 2022 and heard loud bangs, and then her supervisor urged her to leave the building. As she went to the exit, the executive director said there was a shooter. Lopez then heard gunshots and saw another employee lying outside on the ground, with what appeared to be blood on her hand.
Lopez frantically ran away from the building and jumped off a retaining wall – jarring her back. Later she learned Catholic Charities staged the active shooting so they could “see how people reacted”.
Lopez reacted by crying and feeling traumatized because she feared for her life. She sought treatment for mental and physical injuries and brought a lawsuit in district court against her employer for assault and intentional infliction of emotional distress.
In this case, the Nebraska Supreme Court ruled that the district court case could be dismissed, as the Workers’ Compensation Court was the exclusive remedy for a workplace injury.
The person who was hired by Catholic Charities to carry out the active shooting drill, John Channels, was later convicted for five counts of terroristic threats in connection with this incident.
Authorities were not informed in advance of the staged shooting.
DAVID HOREIN, ET.AL., Plaintiffs, v MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES 2024
This case was so egregious and affected so many people (50 patients and 110 employees) that a class action claim was utilized to compensate the victims.
The Hawthorn Center was a children’s psychiatric hospital in Northville, Michigan. On Dec. 21, 2022, someone announced over the loudspeaker that armed intruders had entered the facility. Workers panicked – hiding under desks, barricading doors to protect the children, and texting goodbyes to their loved ones.
Police were called, and armed officers swarmed the scene – where they were told by two unarmed men that they were asked to pose as shooters for an unannounced drill. The complicated legal fallout included a 13-million-dollar settlement and the closure of the Hawthorn Center.
TRAINING OR TRAUMA?
While employers want their employees to be trained in how to respond to dangerous situations, it is not helpful or necessary to traumatize them in the process.
The potential for real harm is more probable than any educational benefit in these mock robberies and shootings, and it is telling that not one of the above disasters had prior police authorization.
KNOW YOUR RIGHTS
If you are injured at a work training or a mock robbery or shooting, call Putnam Law to determine your rights.
