In late November, a Walmart supervisor entered his store in Chesapeake, Virginia where he proceeded to shoot and kill six of his colleagues. He then turned the gun on himself and committed suicide. In the aftermath, certain of the victims’ families have filed lawsuits against Walmart. The crux of those lawsuits: That the shooter had a documented history of strange and aggressive behavior at work. And that Walmart should have known that he posed a danger to other workers. These cases – and any additional lawsuits against Walmart arising out of the shooting – will all hinge on the legal theories of negligent hiring and negligent retention.
Negligent Hiring & Negligent Retention
From my vantage point, we generally see negligent hiring and retention cases in two main areas: (1) Workplace violence and (2) Sexual assault (a subset of workplace violence cases). Let’s take the Virginia Walmart case. What happened in Virginia is an extreme example of workplace violence. Since the shooting, there have been numerous reports that the shooter had a history of erratic, aggressive, and inappropriate behavior at work. But let’s unpack those.
The first lawsuit makes several specific allegations about the shooter’s past behavior. In my view, these allegations fall into two buckets: Relevant or irrelevant.
The lawsuit alleges that the shooter called one colleague a bitch and harassed her about her age, about being poor, about being short. Although that behavior is certainly inappropriate, it does not put Walmart on notice that the supervisor was a threat to commit a mass shooting or any other violent act. There are several other allegations that fall in this bucket (i.e. irrelevant).
Now, here is where things start to get dicey. The plaintiff makes the following allegations:
- The supervisor allegedly stated that if he was ever fired people would remember his name. This is one of the most significant allegations. If true, it virtually screams mass shooter.
- The supervisor allegedly told colleagues that he ran over a turtle with his lawnmower just to see its guts spray out.
- The supervisor repeatedly asked colleagues if they had received active shooter training.
- The supervisor asked a colleague if she liked guns. This alone is not noteworthy. But combined with the other statements it would raise concerns.
There is an additional allegation that the supervisor kept a “kill list” of potential victims/targets. But from my read, the Complaint includes that allegation for shock value. There is no specific allegation that Walmart was actually aware of the kill list prior to the shooting.
What Did Walmart Know: Culpable Knowledge
Far be it for me to defend Walmart. After all, I’ve sued them for $20+ million in a negligent hiring case. But you cannot hold Walmart liable for what happened here unless they should have known that the shooter was a risk. That turns on exactly what reports or allegations were made against the shooter prior to the shooting. If we go back to the Complaint, there are some allegations that the media glosses over but that are particularly telling to a trained eye. The Complaint alleges “On information and belief, Walmart and its managers were aware [of the shooter’s behavior and threats], but kept employing him anyway.” In my view, that’s a tell.
Litigate 200+ cases, including negligent hiring/retention cases and you’ll pick up one some cues. Anybody in this space knows that the case is going to hinge on exactly what was reported to management / corporate. It’s one thing to allege that the shooter made these statements. It’s another thing to allege that all of this was reported to management / corporate. Given how critical that reporting aspect is here, it’s a bit shocking that the Complaint glosses over it. Notably, the Complaint addresses that issue generically and through the passive voice (i.e. Walmart was aware). If there were specific reports made to management / corporate on specific dates, the relevant part of the Complaint would be much different. Instead of generically alleging that Walmart was aware, the Complaint would say:
- On DATE, X sent an email to Walmart’s Human Resources Director advising that the supervisor had made threatening statements A, B, C, D, E, F, G.
- On DATE, X followed-up on that email by calling Walmart’s Ethics Hotline and reiterating her concerns about the supervisor’s threatening behavior.
- On DATE, X followed-up with the store manager via an in-person meeting at the store to reiterate her safety concerns.
You get the picture. If somebody who worked at the Chesapeake store sent an email to management or corporate that said, “[Supervisor] is alway talking about guns, asking if we’ve had active shooter training, and saying that we’ll all remember his name if he gets fired. I’m scared of this guy. I think he’s dangerous.” If anybody ever sent management / corporate something close to that, then Walmart will be liable for negligent retention. And then it’s just a question of damages. But if nobody ever put that in writing? It’s a much weaker case.
Final Notes & Practical Guidance
If you have a colleague or a co-worker whose behavior is threatening or strange (in a threatening manner), do not hesitate to immediately report the situation to management / corporate. Make such reports in writing so that there is a documented paper trail. If possible, send such reports via email and blind copy yourself at a personal email address. Why? So the report doesn’t magically disappear from a company-controlled email server.
And if the behavior truly constitutes a threat of violence, do not hesitate to call the police yourself. Yes, employers have a legal duty to address threatening behavior by their employees. But when people’s lives are at stake, you cannot simply rely on your employer to protect you. If there is any doubt, err on the side of calling the police. Some of these terrible situations can be prevented. And some can’t. But it is always better to err on the side of caution and to report threatening workplace behavior before it escalates to something tragic.
About Jonathan Pollard
Jonathan Pollard is an employment lawyer and the founder of Pollard PLLC. Since 2012, Pollard PLLC has litigated hundreds of employment cases, including cases involving negligent hiring, negligent retention, and workplace violence. Pollard has appeared in or on the New York Times, Wall Street Journal, Bloomberg, PBS News Hour, NPR, The Guardian, The Times (London) and more. His has more than 75,000 followers on LinkedIn, where he frequently posts about law, business, and life. Pollard PLLC can be reached at 954-332-2380.