“The Duel” – An Employer’s Duty to Provide a Safe Work Environment

In the fifth season of The Office (US), Andy Bernard learns that his fiancée, Angela, is having an affair with Dwight Schrute. The love triangle comes to an end when the two men challenge each other to a physical fight to win her affections.

California’s Occupational Safety and Health Act of 1973 (“Cal-OSHA”) requires that employers provide “safe and healthful working conditions for all California working men and women.” (Labor Code § 6300). This is generally understood to mean the prevention of industrial accidents.

But does Cal-OSHA apply to a physical altercation between two employees?

The answer is, “Yes, if there is a credible threat of violence.” In the case of Franklin v. Monadock Co. (2007) 151 Cal.App.4th 252, the court held, “Labor Code section 6400 et seq. and Code of Civil Procedure section 527.8, when read together, establish an explicit public policy requiring employers to provide a safe and secure workplace, including a requirement that an employer take reasonable steps to address credible threats of violence in the workplace.”

Labor Code § 527.8, part of the Workplace Violence Safety Act, permits an employer to seek a temporary restraining order and an injunction on behalf of an employee against “a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace.”

The Franklin court took the permissibility of a restraining and made it a duty under Cal-OSHA. The logic is simple. If a workplace has a loose electrical wire, the employer has a duty to fix it. If the employer knows about an individual with a “loose wire” and it poses a realistic threat to an employer, there is a similar duty to act.

What is a credible threat of violence?

“Credible threat of violence” means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family. An individual’s history of threatening conduct may be considered in assessing whether particular conduct is threatening. City of San Jose v. Garbett, (6th Dist. 2010) 190 Cal. App. 4th 526.

Earlier in The Duel, Jim Halpert is shown collecting various hidden weapons around the office. Dwight Shrute was also known to carry weapons in the office, as seen in this clip from season three, episode nineteen:

However, even though the safety-conscience Dwight Shrute kept weapons for protection, it was still must be shown that Dunder Mifflin knew that there could be violence against Andy Bernard. As it happened, seventeen days earlier, Phyllis revealed Dwight’s affair to everyone else in the office, including manager Michael Scott.

Unsurprisingly, Michael Scott failed to act appropriately in preventing the workplace violence. As such, Dunder Mifflin could have been found liable if any harm came to Andy. Andy would even have a claim for wrongful constructive discharge if he quit working after the duel.

Thankfully, everything worked out for Andy, Angela and Dwight.

However, marital bliss may not be the end result in other situations. Employers and employees should know their rights about workplace safety and work together to resolve these types of situations.

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Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He can be reached at (951) 652-9000.