This is a story from the BBC News Magazine about workplace bullying. The story compares Chef Gordon Ramsay from Hell’s Kitchen and the British host of The Apprentice, Alan Sugar. The format of Trump’s show is similar to that of Sugar’s. PGB
Just what is bullying?
By Rajini Vaidyanathan, BBC News Magazine
Everybody has been in an office where tempers were lost and swearing occurred on an occasional basis. But what distinguishes the acceptable boisterousness that characterises some workplaces with downright bullying?
Shouting, screaming, swearing, ignoring or behaviour designed to embarrass.
Has your boss done any of the above to you, and if so, did you shrug it off as normal office behaviour, or consider it something far more serious?
In a new book, Prime Minister Gordon Brown has been accused of workplace bullying after a number of alleged incidents. He is said to have grabbed staff by the lapels, shoved them aside and shouted at them.
Mr Brown admits he can get angry, and is determined and strong willed, but denies he is a bully.
So where is the line drawn between being assertive in the workplace and being labelled a bully?
Defining where that line is, and when it is crossed, can be difficult. If you’ve failed to meet your project deadline, should your boss take you to one side and sweetly tell you you didn’t make the grade, or does he or she have a right to shout at you and demand answers?
In the various interpretations of workplace bullying, there is a common thread – it is when the behaviour humiliates and offends the victim, is a personal attack, and is an abuse of power.
The Chartered Institute of Personnel and Development, which represents recruitment experts, defines it as this:
- “Bullying at work involves repeated negative actions and practices that are directed at one or more workers.
- “The behaviours are unwelcome to the victim and undertaken in circumstances where the victim has difficulty in defending themselves.
- “The behaviours may be carried out as a deliberate act or unconsciously. These behaviours cause humiliation, offence and distress to the victim.”
But even then, it can be hard to know what distinguishes an ebullient manager from a bullying boss.
“Strong managers are given power because they are managers,” says Lynn Witheridge, chief executive of the Andrea Adams Consultancy which was set up to deal with workplace victimisation. “It’s their job to use and to wield it but not to abuse.”
For many people, the embodiment of an irascible boss is TV chef Gordon Ramsay, or Alan Sugar, who wields the firing finger in the BBC’s The Apprentice. Both have formidable characters and don’t hesitate to deliver withering comments.
But by Ms Witheridge’s definition only Ramsay’s approach could be considered a form of workplace bullying.
“He is absolutely [a bully] because it becomes personal… he uses swearing, and shouts at people saying they’re thick.”
Sugar, however, is not, she says.
“He has to pick the very best but it doesn’t get personal. He doesn’t use personal traits and accuse them of being thick… he strongly manages them.”
But others might see the behaviour of the head chef as entirely reasonable, given the pressurised environment of a professional kitchen.
Most people understand that at busy times, it is high tension, says Jenny Stringer, acting managing director of Leiths School of Food and Wine.
“You need to be quite vocal, depending on the kitchen you need to speak loudly. I don’t think that’s what anyone means by bullying,” she says.
There’s a clear difference between yelling orders at people and operating normal quality control, and repeatedly physically confronting a single member of staff, she notes.
It’s not just in kitchens that tempers are frequently raised. Shouting at someone who is late to meet their deadline might not seem out of place in a newspaper office, or in a trading room where a certain level of robustness is expected.
Neil Addison, a barrister who specialises in harassment cases, says context is key.
“What might not be bullying in the barrack room, might be harassment in a school. If you’re training for the SAS there’s no point complaining that a sergeant is shouting at you because that’s what goes with the job.
“But if you’re a teacher in a school or a worker in an office there’s no reason for your boss to shout at you.”
Some of those who have experienced workplace bullying say the stereotype of being barked at by a short-tempered boss is missing the point. It can manifest itself in a more subtle, yet sustained, manner.
Mark, who worked for a private firm that was contracted by the NHS several years ago, became a victim.
“It wasn’t a question of pushing and shoving, but it was nasty stuff.
“There was an attempt to to show you up in meetings. Saying to your face you didn’t know what you were talking about, putting self-doubt in your mind.”
Yet when he tried to raise the issue, he was given the brush off.
“I tried to do the right thing and reported it to HR. They told me it wasn’t bullying. They said ‘it’s just your boss, it’s the way he is’.”
Mark eventually took voluntary redundancy, and now runs his own antiques business.
“I got to the point where I went off for a while with stress. I was unable to do my job.
“This kind of background bullying, it isn’t as overt as someone standing yelling at your face from two inches away. It hits you in the guts. You think ‘maybe I’m making this up’.”
Part of the problem could be the label of “bullying” which comes with a good deal of emotional baggage, says Lynn Witheridge.
“People are so fearful of using this word. The childish connotations of the word makes them feel weak or a trouble-maker.”
Story from BBC NEWS:
Published: 2010/02/22 15:32:36 GMT
April 7, 2010
Amid emotional testimony, bill targets workplace bullying
By DEE J. HALL
In 2008, 31-year-old Jodie Zebell appeared to have a full life. The UW-Madison graduate was married with two young children and a part-time job as a mammographer at a La Crosse clinic, where she was praised as a model employee.
But soon afterward, Zebell became the target of co-workers who unfairly blamed her for problems at work. After she was promoted, the bullying intensified, her aunt Joie Bostwick recalled during a legislative hearing Wednesday attended by members of her niece’s family, including Zebell’s mother, Jean Jones of Spring Hill, Fla.
After her niece had a run-in with her supervisor, Bostwick said, the boss joined in the harassment, filling Zebell’s personnel file with baseless complaints about her performance and loudly criticizing her in front of others.
“This went on for a series of months,” said Bostwick, a Blue Mounds native who now lives in Naples, Fla. “It just got worse and worse.”
On Feb. 3, 2008, the day before she was to receive a poor job review, Jodie Zebell allegedly committed bullycide – took her own life as a result of depression over bullying. A Madison attorney told the family it had no legal recourse since she wasn’t protected from workplace discrimination as would be an older worker or a racial, ethnic or religious minority.
“We were astounded to find there was nothing we could do. There were no laws unless you were part of a protected class,” Bostwick said.
The tragedy sparked Zebell’s family to join a national movement seeking to ban bullying from workplaces and give victims — who prefer to call themselves “targets” — tools to stop the harassment or sue abusive employers and bullies in court.
On Wednesday, the Assembly Labor Committee heard 90 minutes of often emotional testimony on a bill sponsored by state Rep. Kelda Roys, D-Madison, that would require employers to implement and enforce anti-bullying policies — or face their abused employees in court.
Seventeen states are considering such legislation, according to the Workplace Bullying Institute of Bellingham, Wash., whose director, Gary Namie, also testified at the hearing.
Under the proposal, workers who believe they have been harmed by “abusive conduct” could sue to force the employer to stop the bullying, to seek reinstatement or to get compensation for lost wages, medical costs, attorneys’ fees, emotional distress and punitive damages.
The bill defines abusive conduct as “repeated infliction of verbal abuse, verbal or physical conduct that is threatening, intimidating or humiliating, sabotage or undermining of an employee’s work performance or exploitation of an employee’s known psychological or physical vulnerability.”
Vaguely worded bill
Representatives of business groups told the committee the bill is too vaguely worded and would invite frivolous lawsuits by disgruntled and incompetent workers.
“AB 894 paints a target on the back of small employers … (who) can’t afford to fight claims in circuit courts,” said Pete Hanson, director of government relations for the Wisconsin Restaurant Association.
Andrew Cook of the Wisconsin Civil Justice Council, a consortium of large business groups, agreed. Cook said if Wisconsin becomes the first state to pass such a bill, it would harm the state’s ability to attract business.
But at the hearing, such concerns were largely overshadowed by these stories:
• A Spanish teacher testified she was “iced out and isolated” for four years by older colleagues in her school district. Once a marathon runner, Susan Stiede now suffers from clinical depression, chest pain, panic attacks and symptoms of post-traumatic stress disorder. She quit teaching in 2009.
• A nervous Stephanie Endres told of being harassed by a unnamed female boss in a state agency that she declined to name. Intimidated by Endres’ knowledge of the agency, the new supervisor circulated untrue rumors about her, Endres said, banished her to an office with no phone and separated her from her co-workers. When Endres took a six-month stress leave, the supervisor started bullying other members of the staff, she said.
• Dr. Deborah Lemke told lawmakers of an unnamed Wisconsin hospital where the nursing supervisor verbally bullied nurses on his staff. When she intervened on behalf of the nurses, Lemke said, holding back tears, she herself became a target.
Corliss Olson, associate professor at the UW-Extension’s School for Workers, said the bill is “desperately” needed. Olson said most targets of bullying are “normal, competent people” who can be driven to disability or even death. “This is a viciousness in the workplace that we need to stop,” Olson said. “We can and we must change our workplaces so they are civil.”
FROM: WISCONSIN STATE JOURNAL
* This bill was approved by the New York State Senate on May 12, 2010 by a vote of 45 to 16, with one abstention. It failed to gain passage in the House. See the general blog entry about the Healthy Workplace Bill (HWB) to read an analysis of the problems with the HWB. It’s needs work! PGB
S1823B: Establishes a civil cause of action for employees who are subjected to an abusive work environment
TITLE OF BILL : An act to amend the labor law, in relation to establishing a private cause of action for an abusive work environment
PURPOSE : To establish a civil cause of action for employees who are subject to an abusive work environment.
SUMMARY OF PROVISIONS : Clearly states the definitions of abusive conduct; abusive work environment; conduct; constructive discharge; employee; employer; malice; negative employment decision; physical harm; and psychological harm.
Section 3 defines Unlawful Employment Practice
Section 4 defines Employer Liability
Section 5 defines Defenses
Section 6 defines Retaliation
Section 7 defines Relief generally Employer liability
Section 8 defines Procedures Private right of action Time limitations
Section 9 defines Effect on Collective Bargaining Agreements
Section 10 defines Effect on other state laws other state laws Worker’s compensation and election remedies
JUSTIFICATION : The social and economic well-being of the state is dependent upon healthy and productive employees. Surveys and studies have documented that between 16 to 21 percent of employees directly experience health-endangering workplace bullying, abuse and harassment, and that this behavior is four times more prevalent than sexual harassment alone. Surveys and studies have also documented that abusive work environments can have serious effects on targeted employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, posttraumatic stress disorder, reduced immunity to infection, stress related gastrointestinal disorders, hypertension, pathophysiologic changes that increase the risk of cardiovascular disease and other such effects. This legislation will provide legal redress for employees who have been harmed, psychologically, physically, or economically. It will also provide legal incentives for employers to prevent and respond to mistreatment of employees at work.
S T A T E O F N E W Y O R K
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:
Section 1. The labor law is amended by adding a new article 20-D to read as follows:
ARTICLE 20-D ABUSIVE WORK ENVIRONMENT SECTION 760. LEGISLATIVE FINDINGS AND INTENT. 761. DEFINITIONS. 762. ABUSIVE WORK ENVIRONMENT. 763. EMPLOYER LIABILITY. 764. DEFENSES. 765. RETALIATION. 766. REMEDIES. 767. ENFORCEMENT. 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. 769. EFFECT OF OTHER LAWS.
S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT. SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00743-04-0
S. 1823–B 2 SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY, DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR DISEASES. FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND SIGNIFICANT INCREASES IN MEDICAL AND WORKERS’ COMPENSATION CLAIMS. THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT. THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT UTES. EXISTING WORKERS’ COMPENSATION PROVISIONS AND COMMON LAW TORT LAW ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS. THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO MISTREATMENT OF EMPLOYEES AT WORK.
S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1. “ABUSIVE CONDUCT” MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO THE EMPLOYER’S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY, NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE’S WORK PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS. 2. “ABUSIVE WORK ENVIRONMENT” MEANS A WORKPLACE IN WHICH AN EMPLOYEE IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS TO ELIMINATE THE ABUSIVE CONDUCT. 3. “CONDUCT” MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS TO ACT. 4. “CONSTRUCTIVE DISCHARGE” MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT. 5. “MALICE” MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN EMPLOYER’S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR S. 1823–B 3 DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT’S KNOWN PSYCHOLOG ICAL OR PHYSICAL VULNERABILITY. 6. “NEGATIVE EMPLOYMENT DECISION” MEANS A TERMINATION, CONSTRUCTIVE DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR DISCIPLINARY ACTION. 7. “PHYSICAL HARM” MEANS THE MATERIAL IMPAIRMENT OF A PERSON’S PHYS ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL. 8. “PSYCHOLOGICAL HARM” MEANS THE MATERIAL IMPAIRMENT OF A PERSON’S MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.
S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS CONTROL.
S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF. 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER’S LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON THE PLAINTIFF’S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY UPON THE EMPLOYER’S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS, ILLEGAL OR UNETHICAL ACTIVITY.
S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS CHAPTER.
S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT, THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE PLAINTIFF’S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND ATTORNEY FEES. 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT DECISION, SUCH EMPLOYER’S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.
S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE. 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE ALLEGATION OF ABUSIVE WORK ENVIRONMENT. S. 1823–B 4
S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN EMPLOYEE’S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY THE PROVISIONS OF THIS ARTICLE.
S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION. 2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY COMPENSATION AVAILABLE PURSUANT TO THE WORKERS’ COMPENSATION LAW; PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS’ COMPEN SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS ARTICLE FOR THE SAME SUCH CONDITIONS.
S 2. This act shall take effect immediately, and shall apply to abusive conduct occurring on or after such date.
1. I remained independent, refused to be controlled. (70%)
2. My competence and reputation were threatening. (67%)
3. The Bully’s personality. (59%)
4. My being liked by co-workers and customers (47%)
5. In retaliation for my reporting unethical or illegal conduct, whistleblowing. (38%)
6. I was focused solely on work and ignored the politics. 36%)
7. Bully had personal problems. (35%)
8. I am nonconfrontative and easily overrun by others. (33%)
9. I was at a time of personal medical or life vulnerability or changes. (30%)
10. I could not afford to leave the job and the bully knew it. (30%)
* From Workplace Bullying Institute (2003)(non-scientific survey of 1,000 volunteer respondents who visited WBI’s web site).
International Labor Organization’s World of Work Magazine
#68 – April 2010
Decent work for domestic workers
NEW YORK – According to the US census there are currently over two million people engaged in domestic service in the United States – a number that is probably a significant underestimate. Overworked, underpaid and, until fairly recently, isolated, domestic workers do not even have the right to organize, clinging to the coat tails of labour federations to see their few rights defended.
The plight of domestic workers caring for the sick and the elderly is of particular concern. According to a recent report by the Alliance for Retired Americans, the American Association for People with Disabilities, and the labour federations AFL-CIO and “Change to Win”, roughly half of all home-care workers work full time year round. They are twice as likely as other workers to receive food stamps and to lack health insurance, while one in five lives below the poverty level.
According to the Service Employees International Union (SEIU), a leading labour organization, 90 per cent of home-care workers are female, and one in four heads a household with children. “These people are engaged in essential work that enables others to go out and make a living,” says Priscilla Gonzalez, director of Domestic Workers United (DWU) a grassroots organization based in New York, “and yet they are denied a living themselves.”
The last time US labour law was changed to expand coverage for domestic workers was in 1974 with the Fair Labor Standards Act (FLSA), but employees providing “companionship services” to the aged and disabled were left out (“exempted” in the language of the document) – deemed too casual and informal for legal protection. Since 1974 the world has changed, and both the numbers of home-care workers and the services they provide have grown, but the law has failed to grow with them.
The last time the FLSA’s so-called domestic worker “exemption” was challenged was in 2007 when the Supreme Court ruled that home health-care workers were not eligible for the overtime and minimum wage protections extended to others. And the domestic worker exemption is but one of a list of similar exclusions. As already mentioned, domestic workers in the United States have no right to organize under the National Labor Relations Act (NLRA). They have no protection under the Occupational Safety and Health Act (OSHA). They have no protection under civil rights laws.
… Last summer fifteen US senators sent an open letter to Labor Secretary Hilda Solis, calling for the repeal of the exemption, and arguing in favour of a national minimum wage and the extension of federal overtime requirements to domestic workers. Solis, the daughter of an immigrant domestic worker herself, has been supportive of the idea of scrapping the exemption, referring to it as a “loophole” which should be closed.
How soon that will happen is anyone’s guess, but domestic workers may not have to wait for Congress to get round to changing the law because change may be coming state by state, starting in New York where a comprehensive Domestic Worker Bill of Rights looks set to pass in the State Senate in the coming month or so. If passed the legislation will grant housekeepers, nannies and caregivers the same rights that the majority of US labour enjoys, notably: time-and-a-half for every hour over 40 hours per week; one day off per 7-day calendar week; a limited number of paid vacation days, holidays, and sick days; advance notice of termination or severance pay in lieu of notice. The bill will also give domestic workers the ability to sue employers where these provisions are not met. The bill has been debated within the State legislature for more than six years, and has already passed in the State Assembly. The State Governor has pledged to sign legislation once it reaches his desk.
“It’s going to put domestic workers on an equal footing with everyone else,” says DWU’s Gonzalez, one of the activists who have been fighting for change for a number of years. “The new laws are also going to send a strong message to the work force about being recognized and protected under the law.” Some domestic workers are already getting the message.“The Bill of Rights will put an end to decades and decades of exploitation,” says Patricia Francois, a nanny who spent six-and-a-half years looking after the daughter of a wealthy Manhattan couple until she was fired in December of 2008 after an altercation (Francois claims that her employer punched her in the face, a claim the employer disputes).
For Francois the importance of the bill goes beyond any specific rights it may include. “It will give us back our dignity and respect,” she says.
And the bill’s impact will not be limited to New York. Andrea Cristina Mercado, Lead Organizer of Mujeres Unidas y Activas (MUA), a group of San Francisco/Oakland-based activists – says that as a result of the New York campaign, MUA has decided to push for a legislative Bill of Rights campaign in California. “This year we are going to be introducing a resolution in support of domestic workers at the State level and we are hoping that will help us build momentum for a legislative campaign in 2011,” she says. The last time groups like MUA tried to effect change in California was in January 2006 when they managed to get the so-called “Nanny Bill” introduced in the California Assembly.
The bill was passed by the Assembly and the Senate but was then vetoed by the Governor of California. This time Mercado believes things will be different: “In 2006 we were just focused on rights for overtime and fines for abusive employers,” she says. “This time, we will take an approach similar to the one used in New York and will be going for a comprehensive Bill of Rights, an inspiring platform that gets people stirred up.”
And it is not just the approach to campaigning that has changed. The big difference between now and 2006 is that grass-roots domestic labour movements in the United States have become organized. Domestic workers may be banned from forming a union, but there is nothing to stop cooperatives and associations coming together to exchange information and develop strategy. And this is exactly what they have been doing, beginning in June of 2007 when a small group of domestic workers came together at a National Domestic Worker Gathering in Atlanta, Georgia. On the last day of the gathering the participants took the decision to form a National Domestic Worker Alliance (NDWA) to give domestic workers a voice and to draw attention to their plight. “There were all these local campaigns and initiatives going on, but we wanted to create a coherent whole – and not to have to reinvent the wheel each time,” says NDWA lead organizer Jill Shenker.
The basic idea behind the NDWA was that domestic workers in one state could learn lessons from their counterparts in another; the Domestic Worker Bill of Rights is the first indication of how powerful that approach can be. “The California coalition has been inspired by what their sisters in New York have achieved,” says Shenker, reporting that a comprehensive bill called the California Domestic Worker Bill of Rights (CDWBR) has already been drawn up. The NDWA has also provided the participants with a sense of connection and of course empowerment. “We are not just about tinkering with the labour code,” says Shenker. “What we’re trying to do is build a social movement.”
… Founded by 13 organizations, the NDWA now comprises over 30, and it is only a matter of time before other states, notably Colorado, Illinois, Iowa, Maryland, New Hampshire, Oregon, Rhode Island and Washington pick up the Bill of Rights idea. “We’re really excited about what’s coming down the pipeline,” says DWU’s Gonzalez. “Everyone is watching what is happening in Albany.” Soon they’ll be watching what happens in California.
OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
Some experts say the Occupational Safety and Health Administration should take the lead on combating workplace bullying.* There is overwhelming evidence that workplace bullying can lead to serious injury and even death. In fact, a term has been coined for workers who are driven to suicide as a result of bullying – “bullycide.” In several other countries, workplace bullying is considered a health and safety issues and is regulated by a federal agency like OSHA.
The Occupational Safety and Health Administration in May 2011 adopted a safety program for its own workers that includes a workplace anti-bully policy. The policy is contained in a 278-page document, the OSHA Field Health and Safety Manual, which outlines safety practices for OSHA’s field offices. It was drafted in cooperation with the National Council of Field Labor Locals, a union that represents OSHA workers.
OSHA’s workplace bullying policy is significant because the General Duty Clause of the Occupational Safety and Health Act of 1970 requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees … .” However, OSHA has not enforced that provision with respect to workplace bullying.
The stated purpose of the workplace bullying policy adopted by OSHA for its own workers, contained in the manual’s “Violence in the Workplace” chapter. is: ”To provide a workplace that is free from violence, harassment, intimidation, and other disruptive behavior.”
Here is the OSHA General Duty Clause, Section 5(a)(1) SEC. 5:
(a) Each employer —
(2) shall comply with occupational safety and health standards promulgated under this Act.
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees …
*See Susan Harthill. “The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act.” University of Cincinnati Law Review 78.4 (2010): 1250-1306.
WAGE AND HOUR LAWS
The Fair Labor Standards Act (FLSA) does not address workplace bullying per se but it can be used to combat certain types of abuse. The FLSA establishes minimum wage, overtime pay, record keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek. The FLSA is administered by the U.S. Department of Labor Wage and Hour Division If one aspect of the bullying campaign is failure to pay proper wages or overtime, for example, the FLSA is one potential remedy.
THE NATIONAL LABOR RELATIONS ACT
The National Labor Relations Act (NLRA) was passed in 1935 to protect the right of employees in the private sector to create labor unions, engage in collective bargaining and to take part in strikes. The act is also known as the Wagner Act, after its sponsor, Sen. Robert F. Wagner. The act is regulated by the National Labor Relations Board.
Specifically, the National Labor Relations Board protects the rights of employees to engage in “protected concerted activity,” which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
A few examples of protected concerted activities are:
- Two or more employees addressing their employer about improving their pay.
- Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
- An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.
Most employees in the private sector are covered by the NLRA. However, the Act specifically excludes individuals who are employed by federal, state, or local governments, agricultural laborers, some close relatives of the employer, domestic servants in a home, independent contractors, employers subject to the Railway Labor Act, etc.
FAMILY AND MEDICAL LEAVE ACT
The Familiy and Medical Leave Act (FMLA offers potential help for employees who are suffering health effects from workplace abuse. Administered by the Wage and Hour Division of the U.S. Department of Labor, it entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:
Twelve workweeks of leave in a 12-month period for:
-the birth of a child and to care for the newborn child within one year of birth;
-the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
-to care for the employee’s spouse, child, or parent who has a serious health condition;
–a serious health condition that makes the employee unable to perform the essential functions of his or her job;
– any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).
- California passed a general anti-harassment law in 2014, AB 1825, that went into effect on January 1, 2015. It requires that supervisors in all firms with 50 or more employees receive training in “abusive conduct.” This requirement was added to an existing law requiring employers to provide two hours of sexual harassment training to supervisors within the first six months of the employee’s assumption of a supervisory role. The new law defines “abusive conduct” as:
. . . conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. [It] may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.”
Malice is conduct that is “intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”
The new law states that a “single act shall not constitute abusive conduct, unless especially severe or egregious.”
- Tennessee approved a “Healthy Workplace Act” in 2014 that is designed to curb verbal abuse at work by making public-sector employers immune to bullying-related lawsuits if they adopt a policy that complies with the law. The law applies only to public-sector employers, and administrators aren’t required to follow guidelines. If they do, however they receive immunity from potential lawsuits.
- Utah Gov. Gary Herbert signed HB 216 into law in 2014 to mandate Abusive Conduct training for public sector The law requires state agencies to train supervisors and employees about how to prevent abusive conduct. The law takes effect July 1, 2015. Utah is the second state to pass a training-only law to begin to address abusive conduct in the workplace.
Every state has laws that protect employees from unlawful discrimination. These laws may be more expansive than similar federal laws, encompassing more employers and additional classes of victims. They may offer protection that is not available under federal law. For example, the U.S. Congress has yet to adopt legislation prohibiting discrimination on the basis of sexual orientation but almost half of the states and the District of Columbia have adopted such laws. Thus, a victim of harassment based on sexual orientation may be able to file a lawsuit in state court that would not be possible in federal court. State discrimination laws may offer a wider range of damages, especially with claims related to age discrimination. Many attorneys prefer to bring suit in state courts to avoid federal courts, which tend to be hostile to employment law claims. You should check the laws in your state.
STATUTORY & COMMON LAW REMEDIES
Note: Workers’ compensation laws may preempt tort (personal injury) claims in some states.
Intentional Infliction of Emotional Distress
(IIED). A tort is a civil action to redress a wrongdoing. According to the Restatement of Torts 2nd § 46: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
One court found the conduct must be “‘so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’…but does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'” Porter v. Bankers Life & Casualty Co., 2002 U.S. Dist LEXIS 20627, at 5-6 (N.D. Ill. Oct. 25, 2002) (dismissing intentional infliction of emotional distress claim where employee claimed that he was falsely accused of fraud and bullied and intimidated during questioning about the alleged fraud).
However, the Supreme Court of Indiana said in dicta in Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008) that workplace bullying could be a form of IIED . Id. at 799. In that particular case, the jury rejected the plaintiff’s IIED claim but did find in favor of the plaintiff on a claim for assault. The jury awarded the plaintiff $325,000 in damages. The Indiana Supreme Court found there was substantial evidence or reasonable inferences to support the assault claim and upheld the damages award.
The plaintiff in Raess was hospital operating room perfusionist who claimed the defendant, a cardiovascular surgeon, was “angry at the plaintiff about reports to hospital administration about the defendant’s treatment of other perfusionists” and “aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” 883 N.E.2d at 794. The plaintiff, fearing imminent physical harm, backed up against the wall and held his hands up. Instead of striking the plaintiff, the surgeon stopped, turned, and stormed out of the room, declaring, “you’re finished. you’re history.” Id.
The plaintiff did not return to work, in part, because he developed a panic disorder and depression, limiting his ability to perform under pressure in an operating room.
(Note: This case marked the first time that Gary Namie, the founder of the Workplace Bullying Institute, was allowed to testify as an expert on workplace bullying, over the objections of the defense. Namie called the 2001 incident an “episode of workplace bullying” and called the doctor “a workplace abuser.” Defense counsel argued Namie was not qualified to be an expert because his is not a clinical psychologist, and that Namie based his report on a telephone call with the Plaintiff, without ever speaking to the Defendant. The Indiana Court of Appeals ruled the trial court committed reversible error in allowing the doctor to be labelled a workplace bully and overturned the jury award. However, the Indiana Supreme Court reinstated the jury’s award, finding, among other things, that the defendant’ s objection to Namie’s testimony was procedurally flawed. One of the four justices dissented and said Namie’s testimony was highly prejudicial and violated an evidentiary rule that permits expert opinion testimony only as to “scientific, technical, or other specialized knowledge” to “assist the trier of fact to understand the evidence or to determine a fact in issue.”
See also, Subbe-Hirt v. Baccigalupi, 94 F.3d 111 (1996), where the 3rd Circuit Court of Appeals ruled that a jury could find the plaintiff, a female salesperson, was the victim of IIED by her boss, Robert Baccigalupi. The Court said the Subbe-Hirt was not limited to damages under the New Jersey’s worker’s compensation law because of evidence of deliberate intent on Baccigalupi’s part. The Court said Subbe-Hirt had demonstrated her supervisor’s conduct was sufficiently outrageous to support an IIED claim. Among other things, the Court said, witnesses testified:
” … Baccigalupi replaced females’ given names … with the term “cunt,” to depersonalize and deride the women in the office … Moreover, he would ask Subbe-Hirt for her resignation almost every time she was in the office. Baccigalupi even went so far as to have an unsigned resignation on his desk; we would then ask Subbe-Hirt “why don’t you sign it; if you don’t want to sign it, go on disability … Baccigalupi would “grill” her on work she submitted, asking “why did you do this, what did you do here, what was said here?” If he was not “satisfied” with her answer, he would call Subbe-Hirt’s clients in front of her and say “Elaine says this; what do you say?”
… After one meeting with Baccigalupi, Subbe-Hirt “literally blacked out behind the wheel and hit a tractor trailer just from stress and emotion[,]” suffering severe injuries that required eight days of hospitalization. This incident forced Subbe-Hirt to take temporary disability leave; indeed, her treating psychiatrist has opined that she remains totally disabled with post traumatic stress disorder triggered by Baccigalupi’s badgering and intimidation.”
Key evidence was a note Subbe-Hirt presented to Baccigalupi from her psychiatrist stating she was capable of working but should not be placed under undue stress. He refused her request to place it in her personnel file, and continued his allegedly abusive behavior.
Breach of Contract
Is there an anti-bullying or anti-harassment provision in your employee handbook? In an “at-will” employment states, where an employee can be fired for any reason (except illegal discrimination), this might be the basis for a lawsuit alleging the employer breached its contract of employment.
A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. There must be a false and defamatory statement, an unprivileged publication to a third party, and fault amounting at least to negligence on the part of the publisher.
Assault and/or battery
If this does not rise to the seriousness of a criminal act, it may still be an intentional tort. Assault consists of intentionally and voluntarily causing the reasonable apprehension of an immediate harmful or offensive contact. Battery consists of intentional and harmful or offensive physical contact. See above entry for Intentional Infliction of Emotional Distress where a defendant was found guilty of assault in a workplace bullying case where a doctor approached him in a rage with raised fists but never actually touched him.
Invasion of Privacy
This includes an intentional interference with a person’s interest in solitude or seclusion, either as to his/her person or as to his/her private affairs or concerns. The intrusion must be of a kind that would be highly offensive to a reasonable person. It might include such things as placing a camera or a peephole in an employee bathroom or forcing your way into a person’s hotel room.
An actor is subject to liability to another for false imprisonment if h/she intends to and does confine the other or a third person in a confined space and the other is conscious of the confinement or harmed by it. This might work if, for example, if a bully boss confines you inside an office and blocks your ability to leave.
Tortuous interference with the employment contract or business relationships.
Generally, a third party must knowingly induce the employer to break the employment contract. Theoretically, it could be argued the supervisor acted outside the scope of his/her employment relationship in bullying the target .
Failure of an employer to exercise reasonable care with respect to the hiring, supervision and retention of the abuser
See Daka, Inc. v. McCrae, 839 A.2d 682 (D.C. 2003), where a male banquet chef complained he was sexually harassed by a male supervisor, the catering director, for several months after he refused the supervisor’s dinner invitation. The chef was subsequently demoted and fired. The chef could show that other supervisors were aware of the harassment but did nothing. He sued for negligent supervision, and a jury awarded him $187,500 in compensatory damages and $4.8 million in punitive damages. Negligent supervision claims generally require a tort to be committed by the supervised employee before the employer can be held liable. A tort is a civil wrong recognized by the law as the basis for a lawsuit that results in an injury or harm. This remedy also has been successfully invoked by victims of sexual assault where a company hired a supervisor who had a record of sex offenses and in police brutality cases, where an officer had a record of complaints.
If you are forced to quit a job to escape a bully boss, you may still be able to get unemployment benefits. An employee can argue the employer changed the fundamental terms and conditions of the job for which the employee was hired, effectively dismissing the employee.
Bullying is a costly management problem. Yet, all too often, instead of being the first line of defense, the Human Resources Department reinforces the bullying and further undermines the victim. The result is costly turnover, poor morale, and expensive litigation. Stopping bullying makes economic sense for employers. Does your company have an anti-bullying policy? Is it strictly enforced, even when the bully is a highly valued employee? Are employees encouraged to report bullying and do you insure they are protected from retaliation? If not, you are inviting needless expense and risk. – PGB
“Bully bosses are the bane of management. They are the ones who take credit for their subordinates’ ideas, engage in abusive behavior, humiliate employees in public, talk behind people’s backs, and send others to do their dirty work. Bullies often make the numbers; that’s why it’s hard to get rid of them. When bullies resist all help, they must be removed from the organization. FROM: Article by John Baldoni, Harvard Management Update; Sept. 2005, Vol. 10 Issue 9, p1-3, 3p.
THE TAB FOR EMPLOYERS
It is astonishing that American employers tolerate workplace bullying. Never-mind the devastation that bullying wreaks on the target, bullying wreaks havoc on the company’s bottom line. Bullying results in higher health costs, needless turnover, lower morale and motivation, lost work hours, absenteeism, etc. etc. etc.
- According to Christine Pearson at UNC-Chapel Hill and Christine Porath of USC’s Marshall School of Business (The Cost of Bad Behavior: How Incivility Is Damaging Your Business and What to Do About It (2009)) targets of bullying react in the following ways:
-48% decreased their work effort,
-47% decreased their time at work,
-38% decreased their work quality,
-66% said their performance declined,
-80% lost work time worrying about the incident,
-63% lost time avoiding the offender
- Bullying causes needless turnover.
According to the Level Playing Field Institute, more than two million managers and professionals flee their jobs every year as a result of workplace unfairness, including bullying. The cost of replacing just one $8-per-hour employee can range from $3,500 to $25,000, depending on the industry. The exodus of two million workers costs businesses $64 billion.
Research shows that bullying also contributes to turnover among witnesses of bullying, who suffer emotional distress that is almost as great as that experienced by the victims of bullying. Furthermore, more than a quarter of employees who leaves because of unfairness do not recommend the employer to potential employees, and many do not recommend the company’s products and services to others.
- Bullying results in costly litigation.
Even if the employer wins, it can cost the employer tens of thousands of dollars to defend the lawsuit.
The employer doesn’t always win. In Indiana, a medical technician was awarded $325,000 after successfully suing a surgeon who bullied him in an operating room for Intentional Infliction of Emotional Distress and assault.
A lawsuit, and attendant publicity, can be harmful to a business in terms of public perception and the ability to attract quality employees.
Five Tips for Businesses on Handling Workplace Bullying
(Excerpted from Teresa A. Daniel, Stop Bullying at Work (ISBN 9781586441357, September 2009, $17.95)
To properly approach the bully and create individual change:
1. Confront and monitor existing bullies.
– Talking directly to the bully about the consequences of his or her behavior;
– Training bullies about how to treat others fairly in the workplace; and
– Implementing performance evaluation and appraisal mechanism to discourage bullying behaviors, such as a 360-degree performance feedback system.”
2. Obtain a senior management commitment to a bully-free environment. Organizations need to demonstrate in visible and continuous ways that senior management is committed to addressing and eradicating the bullying phenomenon. Because of the power differential that exists in the relationship between the bully and the targeted employee, the reluctance to report bullying appears to be linked to the belief that nothing will be done and also to the fear of retaliation if something is done.
3. Develop an anti-bullying policy. “Any policy that you develop should be customized to fit your organization’s specific culture, values, and needs. An anti-bullying policy will generally address the following types of issues: your company’s commitment to a culture of mutual respect and zero-tolerance of bullying, clear definitions of bullying, managerial responsibilities, complaint procedures, any support or counseling offered to the target, assurances that all complaints are taken seriously and will be treated confidentially, a ‘no retaliation’ provision, and who to contact to get further information.”
4. Create monitoring, investigation, and complaint systems, disciplinary procedures, and follow-up measures. “Whether or not you elect to develop and implement an anti-bullying policy, a specific internal group or department needs to be identified as being responsible for receiving complaints and educating your employees. An investigation is a necessary response to a bullying complaint. All complaint resolution systems must include an effective disciplinary procedure that spells out the consequences for failure to abide by the company’s policy, including progressive discipline.”
5. Train employees about conduct expectations. “Periodic training of employees must be conducted to ensure a culture of respect and accountability, and also that all employees understand the company’s expectations about their workplace conduct – what is and is not acceptable – and the consequences for failing to observe these requirements.”
Research shows that Human Resources often creates an environment where bullying “remains unchallenged, allowed to thrive or actually encouraged in an indirect way.” If the victim seeks help, HR protects the employer’s interests rather than to seek a fair and just resolution. “The absence of collective voice … renders employees completely vulnerable, with no avenues for redressal … Issues of justice and morality inevitably arise … With managers being judge and jury combined, the correctness of managerial decisions remains largely unchecked … .” FROM: Premilla D’Cruz and Ernesto Noronha, Protecting My Interests: HRM and Targets’ Coping with Workplace Bullying, The Qualitative Report Vol.15, Number 3 (May 2010) http://www.nova.edu/ssss/QR/QR15-3/dcruz.pdf.
In the case of despots, you need to depose them; in the case of bullies, you need to boot them. Few are worthy of rehabilitation. Power for them is both a means to an end as well as the end itself. “ – John Baldoni, 12 Steps to Power Presence: How to Assert Your Authority to Lead, (2010)
Excerpt from the Center for the Promotion of Health in the New England Workplace at the University of Massachusetts, Lowell:
Organizational Practices that cause worker stress:
- Inflexible rules
- Low pay and benefits
- Poor supervision
- Job insecurity
- Responsibility without authority
- Lack of input in decisions
- Poor chances for advancement or growth
- Unclear responsibilities or expectations
- Multiple supervisors
- Lack of recognition
- Poor communication
- Mandatory Overtime
* Patricia G. Barnes is an attorney with experience in both domestic violence and employment law. She is available for consultation, training on creating a healthy and positive management environment for employees and speaking engagements.
This is the 2010 version of the Healthy Workplace Bill,, drafted by David C. Yamada, Professor, Suffolk University Law School, and supported by the Workplace Bullying Institute. This proposal was sharply criticized by international scholars and others as being far less protective of worker rights than legislation in other industrialized countries. The bill has been improved since 2010 but still is problematic. In any case, after more than a decade, it appears unlikely that a state-by-state approach is a viable option to the problem of workplace bullying. This blog supports a federal national approach, recognizing that workers who may need the most protection live in so-called “pro business” states that will never adopt a workplace anti-bully protections. Also, workplace bullying is an important health and safety issue for workers and the United States lags behind other industrialized countries in addressing the problem. Workers need help now! PGB
THE HEALTHY WORKPLACE BILL
By David C. Yamada, Professor, Suffolk University Law School
Section 1 – Preamble
The Legislature finds that:
(1) The social and economic well-being of the State is dependent upon healthy and productive employees;
(2) Between 37 and 59 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment alone;
(3) Workplace bullying, mobbing, and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder.
(4) Abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and increases in medical and workers’ compensation claims;
(5) If mistreated employees who have been subjected to abusive treatment at work cannot establish that the behavior was motivated by race, color, sex, sexual orientation, national origin, or age, they are unlikely to be protected by the law against such mistreatment;
(6) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as that provided for under employment discrimination statutes;
(7) Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or to provide adequate relief to employees who have been harmed by abusive work environments.
It is the purpose of this Chapter:
(1) To provide legal relief for employees who have been harmed, psychologically, physically, or economically, by being deliberately subjected to abusive work environments; (2) To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.
Section 2 – Definitions
(a) Abusive work environment. An abusive work environment exists when the defendant, acting with malice, subjects an employee to abusive conduct so severe that it causes tangible harm to the employee.
(1) Abusive conduct. Abusive conduct is conduct, including acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant’s conduct. Abusive conduct may include, but is not limited to: repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee’s work performance; or attempts to exploit a employee’s known psychological or physical vulnerability. A single act normally will not constitute abusive conduct, but an especially severe and egregious act may meet this standard.
(2) Malice. Malice is defined as the desire to cause pain, injury, or distress to another.
(b) Tangible harm. Tangible harm is defined as psychological harm or physical harm.
(1) Psychological harm. Psychological harm is the material impairment of a person’s mental health, as established by competent evidence.
(2) Physical harm. Physical harm is the material impairment of a person’s physical health or bodily integrity, as established by competent evidence.
(c) Adverse employment action. An adverse employment action includes, but is not limited to, a termination, demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction in compensation.
(d) Constructive discharge. A constructive discharge shall be considered a termination, and, therefore, an adverse employment action within the meaning of this Chapter. A constructive discharge exists where: (1) the employee reasonably believed he or she was subjected to abusive conduct; (2) the employee resigned because of that abusive conduct; and, (3) prior to resigning, the employee brought to the employer’s attention the existence of the abusive conduct and the employer failed to take reasonable steps to correct the situation.
Section 3 – Unlawful Employment Practices
(a) Abusive Work Environment. It shall be an unlawful employment practice under this Chapter to subject an employee to an abusive work environment as defined by this Chapter.
(b) Retaliation. It shall be an unlawful employment practice under this Chapter to retaliate inany manner against an employee who has opposed any unlawful employment practice under this Chapter, or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this Chapter, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings, and legal actions.
Section 4 – Employer Liability and Defense
(a) An employer shall be vicariously liable for an unlawful employment practice, as defined by this Chapter, committed by its employee.
(b) Where the alleged unlawful employment practice does not include an adverse employment action, it shall be an affirmative defense for an employer only that:
(1) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,
(2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.
Section 5 – Employee Liability and Defense
(a) An employee may be individually liable for an unlawful employment practice as defined by this Chapter.
(b) It shall be an affirmative defense for an employee only that the employee committed an unlawful employment practice as defined in this Chapter at the direction of the employer, under threat of an adverse employment action.
Section 6 – Affirmative Defenses
It shall be an affirmative defense that:
(a) The complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity;
(b) The complaint is based on a reasonable performance evaluation; or,
(c) The complaint is based on a defendant’s reasonable investigation about potentially illegal or unethical activity.
Section 7 – Relief
(a) Relief generally. Where a defendant has been found to have committed an unlawful employment practice under this Chapter, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate, including, but not limited to, reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorney’s fees.
(b) Employer liability. Where an employer has been found to have committed an unlawful employment practice under this Chapter that did not culminate in an adverse employment action, its liability for damages for emotional distress shall not exceed $25,000, and it shall not be subject to punitive damages. This provision does not apply to individually named employee defendants.
Section 8 – Procedures
(a) Private right of action. This Chapter shall be enforced solely by a private right of action.
(b) Time limitations. An action commenced under this Chapter must be commenced no later than one year after the last act that constitutes the alleged unlawful employment practice.
Section 9 – Effect on Other Legal Relationships
The remedies provided for in this Chapter shall be in addition to any remedies provided under any other law, and nothing in this Chapter shall relieve any person from any liability, duty, penalty or punishment provided by any other law, except that if an employee receives workers’ compensation for medical costs for the same injury or illness pursuant to both this Chapter and the workers’ compensation law, or compensation under both this Chapter and that law in cash payments for the same period of time not working as a result of the compensable injury or illness or the unlawful employment practice, the payments of workers’ compensation shall be reimbursed from compensation paid under this Chapter.