Quick Hits

• On December 26, 2024, an OSHRC ALJ issued a decision vacating an OSHA citation alleging that a private security company, whose mall security officer was shot and killed after approaching an armed patron, had committed a serious violation of the OSH Act’s General Duty Clause by failing to implement sufficient safeguards to protect its security officers from a recognized workplace hazard.
• The ALJ determined that the specific hazard cited—the shooter—was not legally cognizable under OSHA standards because the hazard was “idiosyncratic in nature” and “unforeseeable.” also found that the company had implemented adequate policies and training to mitigate the risk posed by the general hazard of workplace violence.
• The record established that the security company’s training and policies were clear and specific in instructing mall security officers on how to handle workplace violence hazards.

Since OSHA has not promulgated any workplace violence–specific standards, any citations (including the one against PSC) must be cited under the General Duty Clause. The citation focused on PSC’s alleged failure to protect its security officers from the specific hazard posed by the shooter. However, the difficulty in identifying workplace violence hazards was demonstrated by OSHA’s ongoing struggle throughout the trial to clearly articulate the “recognized hazard” to which PSC had allegedly exposed its employees.

The ambiguity of the citation was tackled head-on by the court, which noted in its decision and order that “the Secretary’s cited hazardous condition ha[d] been unclear in this case.” The court pointed out that OSHA initially identified the hazard as the risk of physical assault posed to PSC security officers by “approaching and engaging with an armed repeat offender of the [mall’s] firearms prohibition,” such as Bergquist (or someone like him), who had shown previous warning signs of violence. As a result, OSHA argued, PSC had not taken adequate measures to mitigate the risk, thereby violating the General Duty Clause of the OSH Act. Ultimately, the court concluded that OSHA’s cited hazard was Bergquist, the individual. However, the court also analyzed the general hazard of workplace violence.

In response to the citation, PSC contended that the hazard posed by an unpredictable mass shooter was beyond the scope of the OSH Act. The company argued that OSHA had failed to meet its burden of proof, as the specific hazard cited was idiosyncratic and unforeseeable. At trial, PSC highlighted its existing policies and training programs designed to address workplace violence, including conflict resolution, use of force, and active shooter training. The court noted that “PSC argued that the unpredictable violent acts of a third-party mall customer committing a mass public shooting were hazards beyond the scope of the OSH Act generally and the General Duty Clause specifically.”

Ultimately, the court used the framework outlined in Integra Health Management, Inc., a 2019 decision where the Commission concluded that in cases of workplace violence cited under the General Duty Clause, the secretary of labor “must establish a ‘direct nexus’ between the work being performed by the employer’s employees and the alleged risk of workplace violence.” The court highlighted the Commission’s finding in Integra that “interactions with the general public may not satisfy the direct nexus test.” Using this framework, the court found that the specific hazard cited by OSHA—Bergquist—was not legally cognizable under OSHA standards. The court determined that the hazard was too “idiosyncratic” and “unforeseeable” to be addressed under the General Duty Clause. This was supported by testimony received during the trial from a behavioral threat assessment expert, who noted that Bergquist’s behavior on the day of the shooting would have been unforeseeable because it “was a spontaneous, impulsive, and emotionally based decision to commit violence.”

Additionally, the court considered the more general hazard of workplace violence and found that PSC had implemented adequate policies and training to mitigate such risks.

“Although an armed-patron-turned-murderer’s motives may be idiosyncratic and beyond PSC’s control,” the court noted, “PSC can control how and when its employees make contact with armed patrons to avoid workplace violence.”

In support of that control, the court looked to PSC’s numerous policies and procedures aimed at avoiding workplace violence. Specifically, the court looked to PSC’s written policy on interacting with armed patrons, which prohibited approach if a patron was exhibiting suspicious behavior or appeared to be intoxicated. There were also guidelines on what to do if an armed patron became confrontational or refused to comply with a security officer’s directive.

Unlike OSHA’s struggles with plainly stating the recognized hazard serving as the basis for its citation, PSC’s training and policies were clear and specific in arming PSC security officers with information and safety protocols to handle workplace violence hazards.

Conclusion

This OSHRC decision highlights the complexities and challenges of addressing workplace violence hazards, particularly those posed in public spaces like malls or shopping centers. The employer’s safety policies, training, and best practices, along with effective trial testimony, helped defeat the citation at the trial.