The state-by-state campaign to pass the so-called Healthy Workplace Bill (HWB) is not a realistic solution to the epidemic of workplace bullying in the United States.
This blog suggested in 2011 that it was time to think about options other than the HWB, which was first proposed in 2001 and has yet be adopted by any of the more than 20 states that have considered it.
Then and now, I proposed the U.S. Secretary of Labor empanel a task force to propose new legislation to address the problem of workplace bullying nationally.
Gary Namie, the director of the Workplace Bullying Institute, primarily argues the HWB’s private right of action is best because it is “revenue neutral” and won’t burden states financially.
However, this is unpersuasive.
- One state might yet be persuaded to pass a version of the HWB but it could take decades for a significant number of states to do so. Some extreme pro-business states will never voluntarily pass a workplace anti-bully bill, just as they have fought tooth-and-nail against other workplace protections.
- The original version of the HWB was anemic. It contained hurdles that were not found in laws adopted in other industrialized countries (or in other U.S. civil rights laws involving the concept of a hostile work environment). These hurdles included requirements that targets prove malice and psychological injury and a $25,000 cap on damages for targets who are not demoted or fired. Even under a new revised HWB, most targets would find it difficult or impossible to obtain a meaningful remedy.
- Under the General Duty Clause of the Occupational Health and Safety Act of 1970 (OSH Act), employers are required to provide employees with a safe workplace. Overwhelming research shows that workplace bullying can result in potentially serious mental and physical harm. The Occupational Safety and Health Administration (OSHA), which administers the OSH act, should protect workers from bullying, just as it protects workers from physical hazards. It’s not a question of passing a new law but enforcing the OSH Act. (Last year, OSHA adopted a workplace anti-bully policy for its own workers.)
- Workplace bullying is widely acknowledged to be a form of workplace violence. Although it is primarily psychological in nature, it can lead to physical violence. It exists on the same spectrum of violence as domestic violence and elder or child abuse, all of which are addressed on a federal and state level. One of the core functions of society is to protect its vulnerable citizens from violence. The HWB provides a private right of action. This means that its enforcement mechanism is the embattled target, who after months or decades of bullying may lack the emotional, physical, and financial resources to hire an attorney and to embark on lengthy litigation with an uncertain outcome. What happens if a target cannot or will not act? The bully moves on to his or her next target.
- A workplace bully is not always an individual. Employers use “strategic harassment” to get rid of workers who demand their rights and to cheat workers out of their legal rights – such as unemployment compensation, worker’s compensation, and/or fair pay and benefits. A target suing a single employer cannot solve this problem. The only practical solution lies with the federal government.
Yes, the monetary penalty for state and federal OSH Act violations is insufficient but this can and should be addressed. OSHA citations also trigger other penalties (including possible criminal sanctions) and an expensive investigation and hearing process. Employers work diligently to avoid OSHA citations.
Namie said he is concerned about the risk of burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But this argument would apply equally to any other lawsuit involving a complaint of a hostile work environment, including sexual harassment or race discrimination lawsuits. Why should this be a focus of concern for anti-bully advocates? Isn’t this what the U.S. Chamber of Commerce does?
The United States lags behind many other industrialized countries in addressing workplace bullying. That is shameful. We owe a debt to Namie and Yamada for significantly helping to raise public awareness about the problem of workplace bullying, and for their extensive work on the issue. However, a solution is long overdue. It is time to consider other options to protect the one in four American workers who suffer with this insidious health and safety problem.