Solutions Exist to End Workplace Bullying; What is Lacking is the Will to Act

What to do about workplace bullying?

The Boston Globe published an article on the problem of workplace bullying recently that focused on a proposed state-by-state solution that has been touted since 2001 by Gary Namie of the Workplace Bullying Institute and Suffolk University Professor David R. Yamada, author of the proposed  Healthy Workplace Bill (HWB).  Originally introduced in California in 2002, the HWB  has been considered in some form by more than two dozen states. If Massachusetts eventually passes the HWP, that only leaves workers in 49 states,  five territories and the District of Columbia without protection from workplace bullying.

Is this really where all the din and struggle of the past decade has gotten us? The United States is falling even farther behind other western democracies, some of which acted decades ago to protect workers from bullying.

The Globe article also perpetuates the common misconception that all workplace bullies are sadistic bosses and mean-spirited co-workers. In fact, much of the problem can be attributed to unscrupulous employers that use bullying tactics strategically to expel older workers and workers who  demand  better working conditions or a legal right (i.e., overtime pay). The absence of anti-bullying laws and regulations in the United States leave these bottom-of-the-barrel employers free to cut corners and evade their legal responsibilities. Taxpayers are left to pick up the tab in the form of higher social welfare costs.

The Globe article, like so many others, fails to note that there are many possible approaches to the problem of workplace bullying in addition to the HWB. Continue reading “Solutions Exist to End Workplace Bullying; What is Lacking is the Will to Act”

Wells Fargo Whistle-Blowers Wait for Justice

Among the casualties in the Wells Fargo Bank scandal are many employees who were allegedly bullied and fired for refusing to engage in unethical practices.

What has happened to them since the news faded from the headlines points up a new scandal – the lack of any real protection for workers who refuse to engage in illegal acts or who participate in whistle-blowing.

Many of the Wells Fargo ex-workers’ complaints have been pending with the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA)  for years without action.

Earlier this year, Wells Fargo paid $190 million in fines to federal and state authorities after acknowledging that its employees covertly opened as many as two million checking and credit card accounts without the customers’ authorization.  The bank, which fired 5,300 employees for improper sales tactics over a five-year period, finally changed its practice of requiring workers to meet unrealistic sales goals o  Jan. 1.

Many of the fired workers claim they were terminated because they refused to engage in or complained about Wells Fargo’s unethical practices. At least a dozen current and former Wells Fargo workers filed complaints with OSHA; some date back more than a decade.

OSHA finally took some action last month when it ordered Wells Fargo to rehire one whistle-blower, a wealth manager who was not named but who was fired in 2010 after he reported suspected fraud via Wells Fargo’s ethics hotline. OSHA ordered Wells Fargo to pay the ex-manager $5.4 million in back pay, damages and attorneys’ fees.  Wells Fargo has announced it will fight the ruling. Meanwhile, the whistle-blower. who filed his OSHA complaint in 2011, said he has been unable to find a new job since he was fired. Continue reading “Wells Fargo Whistle-Blowers Wait for Justice”

Still Far From a National Workplace Bullying Solution

It is an interesting phenomenon that workplace bullying advocates seem to have a hard time working together.

In fact, they don’t, which is one reason why after so many years there is no national solution on the horizon to the problem of workplace bullying.

The Workplace Bullying Institute, chaired by Gary Namie, has been touting a law written by Suffolk University Professor David Yamada since 2002. The so-called Healthy Workplace Bill  (HWB) has been considered by more than 20 states but it has only been passed, in small part, by Tennessee. Unfortunately, Tennessee’s version of the HWB was so unfortunate  that it was promptly disowned by Namie.

Even if the HWB was passed by some states in an unaltered form, it is almost inconceivable that it would be adopted by competitive, pro-business states where workers are the most vulnerable to abuse. And some say it is fortunate that the HWB has fared so poorly, because it offers scant real protection to targets of workplace bullying, especially when compared to anti-workplace bullying laws and legislation passed in other countries.

Nevertheless, the Workplace Bullying Institute has succeeded in bringing attention to the problem of workplace bullying through its state-by-state campaign.

I was part of the formation of the National Workplace Bullying Coalition (NWBC) a couple of years ago.  Some of the group’s members had been put off by Namie, a seemingly gruff and territorial man who has been called a bully himself by a competitor.  Despite this, the NWBC reached out to Namie and Yamada with no success.

From my perspective, it is unfortunate that the NWBC finally settled on a vague mission statement to “work with legislatures at the local, state and federal levels to refine the definition of workplace bullying and implement laws to protect workers’ rights to dignity at work.”  That’s a type of frustrating all things to all people approach that reminds me of the “I’d like to buy the world a coke” commercial for world peace.

Yet, the NWBC has made progress by encouraging the EEOC to study the issue of general workplace harassment. One of the NWBC board members, Professor Jerry Carbo, is a member of an EEOC Select Task Force recently formed by EEOC Commissioner Jenny Yang. The group is expected to issue a report that sheds insight into and offers suggestions to address workplace bullying.  This is an important step.

My area of focus is and always was to achieve a national solution to the problem of workplace bullying.  I believe the answer lies in a combination of health and safety regulations enforced by the Occupational Health and Safety Administration and in a federal law that protects all workers from a hostile workplace environment. I advocated a national solution when I wrote my book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace and I still believe it is the only realistic way to protect American workers.

For years, I have received emails every week from good, hard-working Americans who are being viciously bullied on the job and who are suffering severe mental and physical distress. Workplace bullying is a widely acknowledged form of workplace violence. Other industrialized countries took steps years ago – in some cases decades –  to address the problem of workplace bullying. And yet workers in the United States, who have lost so much in recent years, still have virtually no protection, especially if they are poor or middle class.

Maybe it is naive to think we could be more effective if we worked together to demand a national solution? But workers need a real solution and they need it today, not in the distant future.

Federal Agencies Study Workplace Bullying

While federal and state laws to address workplace bullying remain elusive, the U.S. government is moving forward to address the problem.

The  U.S. Merit Systems Protection Board (MSPB) recently placed “nonsexual harassment” on its research agenda for 2015-2018.  In the past, the MSPB has focused on sexual harassment but it has not previously addressed the problem of general harassment or workplace bullying. The Board states it will study ways to foster effective work environments by eliminating nonsexual harassment.

Meanwhile, the EEOC last month formed a Select Task Force to examine the problem of workplace harassment and look at ways by which it might be prevented. EEOC Commissioner Jenny Yang said 30 percent of the charges received by the EEOC each year include harassment complaints. The task force, which includes 16 members from around the country,  will hold a series of meetings, including public meetings, in the year ahead.

The Occupational Safety Health Administration signed a union agreement in 2011 that provides protection against workplace bullying to its own workforce. Unfortunately, OSHA, which is charged with insuring the safety of America’s private sector workers, has yet to extend these same protections to workers outside OSHA.

According to the MSPB: “Nonsexual harassment is particularly inappropriate when the perpetrator is a supervisor or otherwise exercises official authority over the employee,” states the MSPB.

The MSPB states that federal employees should be aware of the problem of nonsexual harassment and “cognizant of the hazards of nonsexual harassment and strategies to extinguish this behavior before it undermines the quality of their workplace.”

Specifically, the board will study:

  • How do federal employees define nonsexual harassment?
  • How prevalent is it in the federal workplace?
  • Who are the most common perpetrators and victims of nonsexual harassment?
  • What effect does nonsexual harassment have on federal workplace outcomes like retention and turnover, motivation, engagement, job satisfaction, and leader trust?
  • Do federal employees believe that appropriate action is being taken to address nonsexual harassment?
  • What strategies, both effective and ineffective, are used to address it?

The MSPB is an independent, quasi-judicial agency in the Executive branch that hears employee appeals of decisions of the Civil Service Commission, reviews significant actions of the U.S. Office of Program Management, and performs merit system studies.

There is overwhelming evidence that workplace bullying causes targets to suffer  potentially severe mental and physical health impacts.  Employers pay the price for bullying in the form of personnel turnover, low morale and absenteeism, higher health care costs and unnecessary litigation

OSHA Rule Would Reveal Rogue Employers

librarycongress.twolaborersThe truth of the adage that knowledge is power is evident in backlash against the Occupational Safety and Health Administration’s proposed rule to publicize companies’ health and safety records.

OSHA wants to eventually create a public web site containing workplace health and safety information. Businesses already have to report this information to OSHA and this information already supposedly  is public. In reality, however, the information is not accessible.

At present, an employee has to submit a formal information request to a government bureaucrat or  an often reluctant and suspicious employer. Moreover, this needlessly arduous and time consuming process makes it is virtually impossible to compare workplaces and industries.  (e.g., Is this mining company a callous rogue or simply a representative of a dangerous industry?)

Released in November 2013, the proposed rule requires electronic submission of workplace illness and injury data information. The agency will provide a secure website for data collection and insures that any data publicized will not include employee-identifying information. In a press release,  OSHA argues that timely, establishment-specific injury and illness data “will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.”

As usual, the opposition is led by the U.S. Chamber of Commerce,  fresh from its victory in defeating a proposed rule by the National Labor Relations Board  to require employers to post notices informing workers of their right to work together to improve their working conditions under the National Labor Relations Act (NLRA).

At a public meeting called by OSHA earlier this month, Baruch Fellner, a partner of Gibson, Dunn & Crutcher LLP, which represents the national chamber, argued that OSHA is not authorized by statute to create a new, publicly searchable database of workplace injury and illness records.”This is completely beyond OSHA’s mandate,” decried  Fellner. (This was the chamber’s winning argument  to defeat the NLRA posting rule.)

Opponents contend that making employers’ injury and illness data publicly available could unjustly harm an employer’s reputation because the data would not be put into context or include information about the employer workplace safety programs and improvements. They also expressed concern for the potential misuse of this data by business competitors or (gasp!) trial attorneys.

It is certainly understandable that businesses with inordinately high numbers of workplace casualties would want to keep this information under wraps. However, that same argument could be made by convicted felons and sex offenders. Which begs the question – why is the U.S. Chamber of Commerce choosing to align itself with rogue businesses that create or tolerate  conditions that result in needless workplace injuries and deaths.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, says the  reporting rule would permit employers, employees, the government and researchers to have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities. He notes that the proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA.

It seems obvious that true public disclosure of health and safety data could change the equation for employers that now consider employee injuries and deaths to be cheaper than spending money on best practices and workplace safety.

If this is not OSHA’s mandate, what is?

The public has until Feb. 6, 2014, to submit written comments on OSHA’s proposed rule.

Under the proposed rule, initially establishments with more than 250 employees are required to electronically submit the records on a quarterly basis to OSHA. Establishments with 20 or more employees, in certain industries with high injury and illness rates, are required to submit electronically only their summary of work-related injuries and illnesses to OSHA once a year.

Hockey Faceoff Raises Bigger Questions

This is an era that is challenging the violent foundations of America’s major sporting institutions.

On a broader scale, it also is testing the extent of an employer’s responsibility to its employees.

This week, ten former hockey players for the National Hockey League (NHL) filed a federal class action lawsuit alleging the NHL failed to protect them from concussions and injuries that allegedly contribute to dementia and other brain ailments later in life.

The NHL lawsuit follows the settlement  last August of a similar lawsuit against the National Football League in which the NFL agreed to pay $765 million to settle claims from former players alleging the NFL failed to protect them from brain damage caused by repeated concussions.

Off the field or rink, if an employer knowingly permits working conditions that cause employees to suffer serious injury, the employer might be investigated and perhaps even prosecuted by federal authorities. (i.e.  prosecution of Massey Coal Mine official, 2012).

The Occupational Safety and Health  Act requires employers to provide their employees with work and a workplace free from recognized, serious hazards.  The Occupational Safety and Health Administration regularly investigates employers who fail to provide workers with proper safety equipment, resulting in injuries.

Why are injuries that stem from working in a mine or with heavy machinery more serious than injuries that result from playing a professional sport?  Professional sports may be big business but they are fundamentally just entertainment. Shouldn’t the U.S. Department of Labor hold all employers to the same standard?

Unnecessary Violence

I attended hockey games in the 1990s because I enjoyed watching the skill of players on ice skates handling a hockey puck  traveling 100 miles per hour down the ice.  But each game featured  players slammed violently against the plastic partitions and bloody battles over nothing more than macho posturing. I stopped going because it was too violent.

One of the players I watched in Pittsburgh was Bradley Aitken, who is a named plaintiff in the NHL  lawsuit.

It never occurred to me that Aiken and other players were potentially incurring permanent brain damages  but, according to the lawsuit, the NHL did know and still did nothing to protect the players.

The  NHL made it a penalty in 2010 to target a player’s head but still permits fighting and body checking.  Many hockey teams employ “enforcers” whose main job is to fight or violently body-check opponents.

“The NHL’s active and purposeful concealment of the severe risks of brain injuries exposed players to unnecessary dangers they could have avoided had the NHL provided them with truthful and accurate information and taken appropriate action to prevent needless harm,” the lawsuit says.

The players seek damages and court-approved, NHL-sponsored medical monitoring for the players’ brain trauma and/or injuries.

Bill Daly, the league’s Deputy Commissioner, issued a statement Monday: “ … [W]e are completely satisfied with the responsible manner in which the league and the players’ association have managed player safety over time, including with respect to head injuries and concussions.”

The NHL lawsuit was filed in United States District Court for the District of Columbia on behalf of players who retired on or before February 14, 2013.

 

Liability and School Shootings

Who should pay for the dead and injured?

Remember the days when reporters interviewed bystanders after an incident of gun violence who exclaimed: “I never thought it could happen here!”

That comment was oddly absent on Monday when a student shot a teacher and two classmates at a public middle school in Sparks, NV.  The shooter then killed himself. The teacher died of his wounds. The two boys who were shot were sent to a local hospital in critical condition.

When I was going to middle school, a school shooting would have been a bona-fide shock. That was before the tragedies at Columbine High School and Sandy Hook Elementary School. The sad reality is that few people today –at least those who read the news occasionally –  are truly surprised when a shooting occurs anywhere.

It’s often overlooked that a school shooting in a form of workplace violence for the employees of a school system.

The Occupational Safety and Health Act (Act) requires employers to furnish employees with a place of employment that is free from recognized hazards that cause or are likely to cause an employee’s death or serious physical harm.

At some point, the prevalence of gun violence at schools and other public facilities may give rise to a question of liability.

Officials said that one patrol officer was assigned to provide security at the middle school, as well as at least five elementary schools at various locations in the town. Is that reasonable in today’s climate of gun violence?  Police are routinely assigned to provide security at high schools. Was the town and school system negligent for failing to provide better security at the middle school?

A school shooting is not like an act of God – an earthquake, hurricane or tornado.  Because of the lack of sane gun control laws in America, it is entirely predictable that school shootings will occur and that teachers (as well as the children they teach) are at risk.

As I write this, police have yet to disclose any details about the identity of the school teacher. Was he a family breadwinner?  Did he have children who will want to go to college some day? Was he a son caring for elderly parents?

Should the spouse and children  or parents left behind pay for the economic loss resulting from the death of this beloved family member,  now gone because of a senseless act of gun violence? Should the town and its financially hard-pressed school system pay?  Or should gun owners and gun manufacturers pay?

Given the pathetic lack of action by the U.S. Congress, it could be that courts ultimately will have to address the issues of liability stemming from school shootings.  Of course, there’s little reason to think the courts will do a better job than the U.S. Congress given the reality of  partisanship and  the hunt for campaign contributions to judicial elections that cost millions.

According to the U.S. Department of Labor, the cost of workplace violence to an organization is “staggering. It is impossible to overstate the costs of workplace violence, because a single incident can have sweeping repercussions.”  The DOL cites, among other things, the loss of life or physical or psychological repercussions felt by the victims as well as the victim’s family, friends, and co-workers, and the loss of productivity and morale that sweeps through an organization after a violent incident.

NFL Settlement Raises Legal Question

What Did the NFL Know?

The National Football League Thursday agreed to pay $765 million over 20 years to settle claims that it hid evidence about the dangers of head trauma suffered by NFL players.

Should that end the matter? Of course not. 

NFL players are employees. 

Under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”

 Courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard.

 The NFL owners had a legal duty to protect the players when they became aware (or should have become aware) of the devastating brain damage being suffered by their players on the field. At that point, the NFL and NFL team owners should have acted to “abate the hazard.”  Professional football is entertainment and there are many feasible ways the NFL could have made the game safer.   

As a result of the settlement, the NFL may be able to avoid the legal discovery process which would have included the deposition of  league officials and doctors about what they knew and when they knew it.  The settlement, however, does not prevent federal authorities from looking into whether  the NFL recognized the risks and still subjected players to serious physical harm. 

To allow the NFL to bury this matter under a rug through a private legal settlement would be akin to the federal government ignoring coal mine owners in West Virginia who failed to properly tunnel or vent a coal mine that caved in and resulted in  catastrophic loss of life. 

 Workplace Fatalities

The U.S. Department of Labor (DOL) reported last week that  4,383 workers died from work-related injuries in 2012 – that’s  3.2 workers  per 100,000 full-time equivalent workers. In a recent press release. DOL Secretary Thomas Perez said: “No worker should lose their life for a paycheck.”

The DOL’s list of  workplace fatality statistics probably didn’t include Kansas City Chiefs linebacker Jovan Belcher who fatally shot his girlfriend last December and then drove to Arrowhead Stadium and committed suicide in front of his coach and general manager. Or Junior Seau, a retired linebacker for the New England Patriots who fatally shot himself in the chest in at his California home last May.

 The deaths of Belcher and Seau were the latest to raise an alarm about head trauma suffered by  players on the football field. A  2012 study by Boston University School of Medicine of 35 former football players (33 had played for the NFL) found that 34 showed signs of brain disease before their deaths.  Dozens of athletes donated their brains to be studied by the medical school, which found a link between head injuries suffered in the heavy-impact sport and degenerative brain disease.

OSHA Suit Linked to Bullying

osha-logoThe U.S. Occupational Health and Safety Administration (OSHA) has initiated what appears to be one of its first – if not its first – lawsuit involving  workplace bullying.

The U.S. Department of Labor (DOL) filed the lawsuit earlier this month against a Fort Lauderdale business owner who fired a worker after the worker complained to OSHA that the worker was subjected to discrimination because he complained about hostile workplace conditions at the company.

According to an OSHA press release, Duane Thomas Marine Construction LLC and its owner, Duane Thomas, are charged with terminating the worker in violation of Section 11(c) of the Occupational Safety and Health Act (OSH Act).  Section 11 (c)  prohibits discriminating against any employee because the employee has filed a complaint related to the OSH Act or has exercised a right  afforded by the Act.  The employee was not identified by OSHA.

The case  involves what appears to be essentially a campaign of workplace bullying.

The OSHA press release states the employee complained that Thomas on numerous occasions between Dec. 9, 2009 and Feb. 25, 2011 “committed workplace violence and created hostile working conditions. He allegedly behaved abusively, made inappropriate sexual comments and advances, yelled, screamed and made physically threatening gestures, in addition to withholding the employee’s paycheck.”   The employee worked directly for Thomas at the company’s custom marine dock installation services site on Marco Island.

The case is significant because the General Duty Clause of the OSH Act requires employers to provide safe and healthful workplaces for their employees.  However, OSHA has not shown any leadership with respect to workplace bullying, even  though overwhelming research shows that workplace bullying causes potentially serious short and long-term health consequences.  OSHA typically enforces safety standards that relate to traditional industrial hazards, such as high noise levels, chemical exposure, electrical or fall hazards, etc.

Shortly after Thomas was notified of the OSHA complaint, OSHA states that Thomas  had the company’s computer passwords changed to deny the employee remote access to files and then terminated the employee.

The lawsuit seeks back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, it seeks to have the employee’s personnel records expunged with respect to the matters at issue in the case and to bar the employer from committing  future violations of the OSH Act.

Teresa Harrison, OSHA’s acting regional administrator in Atlanta, said, “Employees have the right to raise workplace violence concerns without fear of retaliation.”

The lawsuit, Solis v. Duane Thomas Marine Construction LLC and Duane Thomas, was filed in the U.S. District Court for the Middle District of Florida, Fort Myers Division.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor requesting  an investigation by OSHA’s Whistleblower Protection Program.   The  program enforces the whistleblower provisions of more than 20 statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

OSHA: A Sleeping Giant Awakes?

whip in

Many countries around the world consider workplace violence to be an important worker health and safety issue but the U.S. Occupational Safety and Health Administration has been oddly silent on this issue..

 That’s why it is significant that OSHA recently cited a  Dallas company for safety violations following a robbery that resulted in the  horrific death of a store clerk at a Whip In convenience store in Garland, Texas. 

 The OSHA citations carry proposed fines that are  underwhelming – $19,600.   However, the action sends a message to convenience store owners that they would be well advised to pay attention to the issues of workplace violence. 

 In May of 2012, the store clerk, Nancy Harris, 76, died from second- and third-degree burns after she was set on fire during the robbery. Police said Matthew Lee Johnson, 36, arrived at the Whip-In shortly after the store opened at 7 a.m. on a Sunday. Officers said he carried in a bottle of flammable liquid and used it to douse Harris and then set her on fire — after clearing out the cash register.

OSHA cited TMT Inc., owner of the Whip In chain,  for four serious safety violations.  OSHA contends that if the employer had implemented appropriate control measures and provided training to ensure awareness of potential violence, it is possible that Ms. Harris’ death could have been avoided.

OSHA could not cite any specific violations of their safety standards, so each store was cited with violating OSHA’s “general duty clause” for failing to provide a workplace free from recognized hazards likely to cause serious injury or death.

While the fine is a pittance, it is not inconceivable that the TMT will face a civil lawsuit as a result of Ms. Harris’ death and  the OSHA action could be a significant factor in  such a lawsuit.

 OSHA’s Dallas Area Office opened an investigation at the Garland store in May after the robbery and later investigated the company’s three other stores in Dallas and Mesquite. OSHA  found that workers at those locations were exposed to the same or similar workplace violence hazards.  TMTemploys more than 60 employees across the Dallas-Fort Worth area.

According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), of the 4,547 fatal workplace injuries that occurred in the United States in 2010, 506 were workplace homicides.

  OSHA defines workplace violence as any act or threat of physical violence, harassment, intimidation or other threatening and disruptive behavior that occurs at a work site.  According to OSHA, workplace violence  includes behavior ranging from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

 More information on workplace violence is available at OSHA’s website at www.osha.gov/SLTC/workplaceviolence.