ORLANDO, Fla. (Legal Newsline) – While warnings from co-workers didn't prevent this past weekend's mass killing in Orlando, employers must encourage that kind of communication to not only prevent attacks but reduce liability, an employment attorney said during an interview on Monday.
"I'm still processing what happened over the weekend," Sarah J. Moore, a partner in Fisher Phillips' Cleveland office who works regularly in labor and employment law, said during a Legal Newsline telephone interview.
"It's disturbing that there were co-workers who did the right thing and reported what they knew. And yet it didn't prevent this tragedy from occurring."
Employers, however, should not take that as a sign that encouraging employees to report a co-worker about whom they have concerns doesn't work, Moore said.
"It does not mean we should not foster the means of reporting co-workers who are a threat or a danger," Moore said. "We have got to have those open means of communication or there is no way we can have to try to stop it."
Early Sunday, a 29-year-old gunman, Omar Mateen, who went on a shooting rampage inside popular Orlando gay nightclub Pulse, killing 49 and 53 wounding, according to local police and news reports. Mateen was killed by police when it became clear he was about to kill more people, according to those same reports.
On Monday, FBI director James B. Comey said during a press briefing at FBI Headquarters about the Orlando massacre that the bureau received worrisome reports from Mateen's co-workers several years ago.
"We first became aware of him in May of 2013," Comey said during the briefing. "He was working as a contract security guard at a local court house. He made some statements that were inflammatory and contradictory that concerned his co-workers about terrorism."
Acting on those reports from Mateen's co-workers, the FBI’s Miami office opened a preliminary investigation, "something we do in hundreds and hundreds of cases all across the country," Comey said. The 10-month investigation included interviews with Mateen, Comey said.
"He admitted making the statements that his co-workers reported, but explained that he did it in anger because he thought his co-workers were discriminating against him and teasing him because he was Muslim," Comey said.
Pulse owner Barbara Poma referred to her own employees in her statement, issued Sunday, that now makes up the landing page on the nightclub's website.
"Like everyone in the country, I am devastated about the horrific events that have taken place today," Poma said in her statement. "Pulse, and the men and women who work there, have been my family for nearly 15 years. From the beginning, Pulse has served as a place of love and acceptance for the LGBTQ community. I want to express my profound sadness and condolences to all who have lost loved ones. Please know that my grief and heart are with you."
In the wake of such a tragedy, it is natural for employers to wonder about their own preparedness, not only to protect their employees and work environment, but also to reduce the liability they might face, Moore said.
"The difficulty is, and as we saw over the weekend, it's impossible to crystal ball this stuff," she said. "Mostly what we're seeing right now is people trying after the fact to see if there is something that could have been done that would have prevented this."
That is the same thing plaintiffs attorneys will look for after the fact in determining who should be sued and employers can be pulled into that, Moore said.
"You can be rest assured that either the employee or the employee's estate will look into filing for Workers' Compensation or a wrongful death tort," Moore said.
An employer who finds themselves in this position can expect to be closely examined, Moore said.
"Analyzed with tremendous detail," she said. "Looking for any sign that they could have foreseen what occurred and whether they took any steps to prevent it."
Further complicating matters is how emotionally charged such cases become in an atmosphere in which all sides are mourning a tragedy, Moore said.
"The loss is so great and there is no way to compensate it adequately, even in cases where liability is found," she said. "And in cases where no liability is involved, it leaves a gaping hole for all involved."
For all these reasons, employers need to do all they can to work toward prevention and to promote a work environment where employees feel safe, where adequate security is in place and open communication is encouraged.
"There is no easy solution," Moore said. "The key is communication. Employers need to look at how they can have their workplace set up that provides an environment that fosters all these things."