Tag: violence in the workplace

Rutgers’ “Independent” Investigation

RutgersOne wonders how an “independent” investigation could support a finding that Rutgers bullying basketball coach Mike Rice should remain on the university payroll?

Rice was forced to resign recently after a videotape was leaked to the public and showed him verbally and physically  abusing players, while using homophobic slurs.

 In his letter of resignation letter to Rutger’s President Robert L. Barchi, Athletic Director Tim Pernetti writes:

 “As you know, my first instincts when I saw the videotape of Coach Rice’s behavior was to fire him immediately. However, Rutgers decided to follow a process involving university lawyers, human resources professionals and outside counsel. Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.”

Corporate Counsel  reports that the outside counsel, Attorney John Lacey, an attorney with Connell Foley of Roseland, NJ,  issued a report in January stating that Rice could not be fired “for cause.” because there was no clear violation of his employment contract.

  Lacey found that Rice was extremely demanding of his assistant coaches and players but that his behavior did not constitute “a ‘hostile work environment’ as that term is understood under Rutgers’ anti-discrimination policies.”  Lacy said  the “intensity” of Rice’s misconduct may have breached provisions in his contract against embarrassing the school but, as Rutgers officials conveniently point out, did not recommend termination. 

The conclusion of the so-called independent investigation once again raises questions about these so-called  independent investigations.

 Increasingly,  employers hire  outside parties to “investigate” claims of workplace abuse.  There  often is  an unstated expectation that the result  of the investigation will affirm the employer’s goal of retaining the valued bully while insulating the employer from a potential lawsuit if the less valued target files a lawsuit. Too often the so-called independent investigators are attorneys who place themselves in the position of appearing to be for sale to the highest bidder.

 The videotape is so shocking that it defies reason that any “independent” investigator could reasonably  conclude that Rice’s behavior did not justify dismissal. In fact, some of the basketball  players could have filed criminal assault complaints against Rice for physically manhandling them. Instead of dismissing Rice, Rutgers fined him $50,000 and suspended him for three games in December.

 Just as in the Penn State scandal involving  pedophile football assistant coach Jerry Sandusky, Rutgers appears to have tolerated Rice’s bad behavior.

After the videotape was leaked, the dominos began to fall. Rice was fired.  Assistant Coach Jeremy Martelli, Rutger’s General Counsel John Wolf, and Pernetti resigned.  If I were Barchi, I wouldn’t make plans to redecorate the Presidential suite.  Barchi’s  claim that he never took the time to watch the videotape.until it was made public was met with obvious disdain at a press conference. Barchi blamed his bad decision on a “failure of process.”

Here is what needs to happen so that employers will take workplace bullying seriously – managers  need to be held accountable.  

These student athletes are essentially workers who are paid in the form of scholarship assistance by the university.  Like any other worker, they know that  a complaint can result in retaliation and their termination.  These players  relied upon their unofficial employer, Rutgers, to insure they were treated with dignity and respect and certainly not subjected to emotional and p physical abuse.

 Most of the players just put up with Rice’s abuse. However, according to news reports, at least three players transferred from the program as a result of Rice’s abuse.

           

           

Workplace Bullying Increasing

A new study by CareerBuilder finds that workplace bullying is on the rise, with 35 percent of workers reporting they have felt bullied on the job, up from 27 percent last year.

 Sixteen percent of these workers reported they suffered health-related problems as a result of bullying and 17 percent decided to quit their jobs to escape the situation.

 The study  found the majority of incidents go unreported.  Twenty-seven percent of  targets said they reported the bullying to their Human Resources department. Of these workers, 43 percent reported that action was taken while 57 percent said nothing was done.

 The scientific  survey was conducted online  by Harris Interactive from May 14 to June 4, 2012 and included more than 3,800 workers nationwide.

 Who Are the Bullies?

 Of workers who felt bullied, 48 percent pointed to incidents with their bosses and 26 percent to someone higher up in the company. Forty-five percent said the bullies were coworkers  while 31 percent were picked on by customers. 

 More than half (54 percent) of those bullied said they were bullied by someone older than they were, while 29 percent said the bully was younger.

 Weapons of a Workplace Bully

 The most common way workers reported being bullied was getting blamed for mistakes they didn’t make followed by not being acknowledged and the use of double standards. The full list includes:

  • Falsely accused of mistakes – 42 percent
  • Ignored – 39 percent
  • Used different standards/policies toward me than other workers – 36 percent
  • Constantly criticized – 33 percent
  • Someone didn’t perform certain duties, which negatively impacted my work – 31 percent
  • Yelled at by boss in front of coworkers – 28 percent
  • Belittling comments were made about my work during meetings – 24 percent
  • Gossiped about – 26 percent
  • Someone stole credit for my work – 19 percent
  • Purposely excluded from projects or meetings – 18 percent
  • Picked on for personal attributes – 15 percent

Standing Up to the Bully

 About half (49 percent) of victims reported confronting the bully themselves, while 51 percent did not. Of those who confronted the bully, half (50 percent) said the bullying stopped while 11 percent said it got worse, and 38 percent said the bullying didn’t change at all.

The company offers the following tips for workers who are feeling bullied:

  1. Keep record of all incidents of bullying, documenting places, times, what happened and who was present.
  2. Consider talking to the bully, providing examples of how you felt treated unfairly. Chances are the bully may not be aware that he/she is making you feel this way. (Personally, I disagree.  Most bullies know exactly what they are doing. A small percentage are actually psychopaths ,completley lacking in empathy.  Use your judgment when confronting a bully – it may work but it also could escalate the problem or the bully could lay low until he/she sees the opportunity to finish the job.) 
  3. Always focus on resolution. When sharing examples with the bully or a company authority, center the discussions around how to make the working situation better or how things could be handled differently.

Surveys consistently show that between a quarter and a third of workers have felt bullied on the job. Furthermore, there is overwhelming research  that workplace bullying can lead to potentially severe mental and physical health problems. Yet, efforts to address the problem in the United States over the past decade have proved fruitless up to now. Meanwhile, many other industrialized countries have adopted regulations or laws to address workplace bullying which place the responsibility upon the employer to insure a safe bully-free workplace for employees.

Readers can sign a petition calling up the Secretary of Labor to take action to address the epidemic of workplace bullying by going here.

CareerBuilder’s on-line site, CareerBuilder.com®, is the largest in the United States with more than 24 million unique visitors, 1 million jobs and 49 million resumes.

 

Lesson of the Boys on the Bus

Could videotaping be a solution to workplace bullying?

It was in Karen Klein’s case.

As a result of a cell phone video that went viral on the Internet, four seventh-graders in upstate New York recently were suspended for a year for bullying Karen Klein, a 68-year-old school bus monitor.

Meanwhile, a fund drive started on Klein’s behalf has yielded more than $650,000 to date.

It is unlikely that anyone would have believed what Klein went through on that bus ride home if it had not been videotaped.  The youths’ behavior is so vile that it is shocking !

The four boys cruelly taunt and humiliate Klein, even commenting about the suicide of her oldest son.  (“You don’t have a family because they all killed themselves because they don’t want to be near you.”)  They invaded her personal and emotional space, as well as her physical space. They drove her to tears and they were positively gleeful about it.

Surveys show that at least one in four American workers experience a hostile workplace as a result of bullying. Adult bullies tend to be more sophisticated than middle school boys. Most bullies in the workplace are supervisors but they can also be co-workers and customers.

Supervisors undermine the target over time with unfair criticism and demeaning comments.  They sabotage the target’s work by providing inadequate resources and unrealistic deadlines. They set out to systematically destroy the target’s reputation and self-esteem.

Targets of workplace bullying currently have little or no legal recourse to address the problem unless they are targeted in violation of civil rights laws on the basis of race, sex, religion, national origin, age, disability, etc.  Most targets of workplace bullying must either endure the bullying until they are sick, forced to quit or fired.

Other countries have adopted laws and regulations addressing workplace bullying but there is no state or federal law on the problem in the United States. Workplace bullying has been virtually ignored by the U.S. Secretary of Labor and the U.S. Occupational Health and Safety Administration.

So back to Klein’s case. The videotape of the boys on the bus drew international attention to her plight. Maybe there’s a lesson there.

Employers today routinely monitor employees to insure against theft or fraud. Why shouldn’t employees electronically monitor the workplace?

Keep in mind that several states have laws that prohibit the use of devices that record, photograph or overhear events or conversations in private places. Private areas include places where a reasonable amount of privacy is expected, such as a restroom or a locker room. Most work areas are considered public but … anyone who is seriously considering the surreptitious monitoring of their workplace should review (in advance) the laws of their state and, if they’re smart, consult an attorney.

It’s a radical idea but maybe a few viral videos that demonstrate the real problem of workplace bullying in the United States would prompt some long overdue federal attention to the problem.

Workplace Bullying: America Lags Behind

It is a disgrace that America is one of the only industrialized countries in the world that tolerates workplace bullying.

Please sign a petition asking the Obama administration to formulate a national strategy to halt workplace bullying. The petition, created by a coalition of workplace anti-bully advocates (including this blog), can be found at http://www.thepetitionsite.com/1/protect-us-workers/.

Among other countries, America lags behind the 32 members and participating states of the European Union that voted in 2007 to require all employers to address and prevent workplace bullying.  Sweden acted in 1993!

The World Health Organization calls workplace bullying a major public health problem.  There is overwhelming research showing that targets of workplace bullying may suffer a variety of long-and short-term mental and physical health problems. A high level of stress in the workplace is linked to chronic disease, including cardiovascular disease.

If you happen to be the one-in-four American workers who are afflicted with bullying, you will quickly find that no federal or state law exists to protect you.  Sure, the U.S. Occupational Health and Safety Act of 1970 requires employers to provide all workers with a safe workplace but the OSH Act is not enforced with respect to workplace bulling. Even if you can shoehorn your complaint into an existing law, it will be an expensive, long, uphill battle.  You may also find that the American judiciary is not knowledgeable or sympathetic to the plight of workers.

Surveys show that most targets of bullying are either forced to quit or resign.

In a little more than two weeks, about 7,000 people have signed the petition. Surely this is evidence of the overwhelming nature of this problem, especially in our current dire economy, with an aging workforce that cannot afford to quit or retire. When you sign the petition, an email is dispatched to both the White House and to the Labor Secretary.

Here are some recent comments from the petition:

  •  Workplace bullying has to end! My diabetic dad is too afraid to speak out against his coworker and boss who are creating a severe hostile work environment for fear of losing his job. This epidemic has to stop.
  • Workers who bully are unprofessional and immature and psychologically disturbed, and contribute to health problems in their targets and increased absenteeism and med costs. Remove the bullies, the work environment should be on a professional par with other industrialized countries, and not a playpen or a refuge for sociopaths.
  •  I too was bullied by a supervisor, who was a bully while in school. He would snark at me, make fun of my work if my way of performing the task was different than how he envisioned (my way was more time-efficient even), roll his eyes at my comments, and such. Once when he was asking me for some personal info I finally told him, ‘why would I give a bully additional info to use against me?’ I had lots of hair loss, high blood pressure, unsettling dreams leading to unsettled sleep patterns, and felt tired all the time. I did finally make it to retirement, whew, and it took 6-10 months for my body to realign from all the stress.
  •  I had loved my job and the people I worked for and with; but after seeing my boss bully and harass employees until they quit or are fired; it suddenly became my turn. i could not understand why a guy that i gave everything to 12- 15 hours a day, would harass me and call me names to the point where I would be hospitalized several times for severe anxiety disorder, and have to live with it and medication. all caused by one man that felt that with power and riches he can ruin anyone’s life he chooses.
  •  Bullies aren’t found only in the schools. Some graduate to become workplace bullies. Just because they are chronologically adult doesn’t guarantee they will act responsibly. Please act to protect working Americans.

Workplace Bullying Affects Family Relationships

There’s an old saying: When mom is unhappy; everyone is unhappy!  (Presumably the same goes  for Dad.)

A study by a Baylor University researcher has found that workplace incivility can be so intense that, at the end of the day, the target brings it home, where it impacts the well-being of the worker’s family and partner.

The study’s author, Merideth J. Ferguson, Ph.D., an assistant professor of management and entrepreneurship at the Baylor University Hankamer School of Business, says:   “Employees who experience such incivility at work bring home the stress, negative emotion and perceived ostracism that results from those experiences, which then affects more than their family life – it also creates problems for the partner’s life at work.”

Since the employee is stressed and distracted, the partner is likely to pick up more of the family responsibilities, and those demands may interfere with the partner’s work life. The study also found that such stress also significantly affected the worker’s and the partner’s marital satisfaction.

“This research underlines the importance of stopping incivility before it starts so that the ripple effect of incivility does not impact the employee’s family and potentially inflict further damage beyond the workplace where the incivility took place and cross over into the workplace of the partner,” said Ferguson.

The study included 190 full-time workers, who all had co-workers and had an employed partner, who agreed to complete an online survey.  After completing the survey, workers were asked to have their partners complete a separate survey.  Approximately 57 percent of the employee sample was male with an average age of 36, while 43 percent of the partner sample was male with an average age of 35. Of these couples, 75 percent had children living with them.

“Unlike the study of incivility’s effects at work, the study of its impact on the family is in its infancy. However, these findings emphasize the notion that organizations must realize the far-reaching effects of co-worker incivility and its impact on employees and their families,” Ferguson said.

“One approach to prevent this stress might be to encourage workers to seek support through their organization’s employee assistance program or other resources such as counseling or stress management so that tactics or mechanisms for buffering the effect of incivility’s stress on the family can be identified,” she said.

Ferguson advises workers who are experiencing “chronic rudeness” to get help with stress management techniques. “Rudeness and instability can result in things like anxiety and depression, so we suggest people get in touch with a counselor,” she said. “If it starts impacting their physical and mental health, they should seek a job elsewhere.”

The study results were announced in an August 16, 2011 press release by Baylor, which is based in Waco, TX.

Other Approaches to Workplace Bullying?

So far, efforts to combat bullying in the American workplace largely have centered on a campaign spurred by the Workplace Bully Institute to pass anti-bullying legislation on a state-by-state basis.  To date, the effort has yet to yield a single success (defined as a state that has adopted such legislation).

What would happen if workplace anti-bully advocates took a different approach?

One idea might be federal legislation to amend Title VII, the Civil Rights Act of 1964, to  permit any worker to sue if subjected to a hostile workplace environment.

Another idea is to approach the problem as an important public  health issue  –  which it is – and adopt health and safety regulations to protect employees on that basis. Finally, one might think local – push cities and towns to adopt legislation to protect employees from workplace abuse.

Advocates for anti-obesity measures took the local approach, with some initial success.  However, industry groups are now finding a way to halt local initiatives, using stealth tactics to erect statewide road blocks.

Public health advocates persuaded some progressive cities and counties around the nation to pass anti-obesity measures, such as requiring restaurants to list fat and calorie content on their menus or to prepare food without unhealthy trans-fats.  The New York Times reported June 30, 2011 that  industry groups are acting pro-actively to quash these anti-obesity efforts. and they are using stealth tactics.

The Times notes that Ohio’s 5,000-page state budget contained sweeping limitations on local government control over restaurants.  Florida  adopted similar limits, tucked into a bill that largely concerned amendments to state regulations on vacation rentals. Other states with limits include Alabama, Georgia, Tennessee, and Utah. Earlier this year, Arizona prohibited local governments from forbidding the marketing of fast food using “consumer incentives” like toys.

Not surprisingly, state restaurant groups are leading the charge for the preemptive state legislation.   State legislators who sponsored preemptive legislation in Florida and Alabama say they were contacted by their state’s restaurant associations, which expressed concern that California’s latest food rules would be adopted by their own local governments.

The Los Angeles City Council has banned fast food restaurants in South Los Angeles, where rates of poverty and obesity are high. In April, the Santa Clara County supervisors adopted a policy that forbids fast food restaurants from selling meals with toys, like those connected with movie promotions.

The Ohio law gives the state’s director of agriculture “sole and exclusive” authority to regulate the use of consumer incentives in food marketing and prohibits localities from requiring menu labeling and using incentives and laws to address “food-based health disparities.”  The statute may nullify a law passed by the Cleveland council in April that banned restaurants and food makers from using “industrially produced” trans fats in products.

One of the fundamental concepts of the U.S. Constitution involves the importance of state’s rights – the idea  is that real change and progress comes from experimentation among the states and not through a federal bureaucracy. It doesn’t take a PhD. to see that this concept also is relevant to states, which tend to  adopt progressive statewide legislation in response to local initiatives.   I’d rather be guided by the framers of our U.S. Constitution than self-interested industry groups. Wouldn’t you?

The state-by-state campaign to adopt workplace anti-bully legislation began in 2003 in California and has encountered steady opposition from business groups, who apparently are largely ignorant about the enormous toll bullying exacts on the employer’s bottom line.   This, despite the fact that the Workplace Bullying Institute is pushing a proposed Healthy Workplace Bill that is considerably weaker than legislation adopted in other industrialized countries around the world. American workers deserve strong protection from bullying in the workplace, which causes health problems and destroys lives and families.

* The new state laws limiting public health measures will have no effect on a federal law that requires menu labeling by chains with 20 or more restaurants by 2013. But more than half of the nation’s restaurants will not be required to meet the federal rules for listing calories and fat content.

Wisconsin Supreme Court Judge Out of Order?

Places Chokehold on Fellow Justice

Wisconsin Supreme Court Justice Ann Walsh Bradley has accused fellow Justice David Prosser of putting her in a chokehold during a dispute in her office on June 13, 2011,  a day before the Court’s decision upholding a bill to curtail the collective bargaining rights of public employees.

According to the Milwaukee Journal Sentinel, Bradley said:  “The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold.”

Perhaps the most interesting thing about the story is not the alleged assault but the fact that an incident pf workplace violence was shrouded in secrecy for almost two weeks, until  Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism published a story based upon anonymous sources.  Why was it necessary for  anonymous sources to disclose that one of Wisconsin’s high court judges had allegedly assaulted a fellow justice?  Where is the transparency?

The Wisconsin Center for Investigative Journalism  on June 25, 2011 quoted “at least three knowledgeable sources” who declined to be named but said, “other sources have offered a conflicting account.  Justice Prosser has declared that the claims, once investigated, will be ‘proven false.’”

There are competing versions of the incident. The Journal also quoted   a source who said Prosser made incidental contact with Bradley’s neck as he put up his hands in a defensive posture as Bradley rushed toward him “with fists up.”

The Wisconsin Judicial Commission, which  is charged with investigating allegations of misconduct involving judges, was informed of the alleged assault. However, a spokesman for the Commission said he could neither confirm nor deny whether the commission, which was informed of the incident, will investigate.

Judge Prosser’s judicial temperament was called into question earlier this year:

 In March, the Milwaukee Journal Sentinel reported that, in a disagreement over a case last year, Justice Prosser, 68, had called Chief Justice Shirley Abrahamson a “total bitch” and threatened to “destroy” her. Prosser, the paper reported, confirmed making the remarks, saying he “probably overreacted” while accusing Justices Abrahamson and Bradley of being “masters at deliberately goading people into perhaps incautious statements.”

OSHA Adopts Workplace Anti-Bullying Policy

 

The Occupational Safety and Health Administration has 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 was released on May 23, 2011. The manual 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, despite overwhelming research that workplace bullying may cause severe damages to a target’s mental and physical health.

The stated purpose of the workplace bullying policy, 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.”

The manual defines “intimidating behavior” as:

“Threats or other conduct that in any way create a hostile environment, impair Agency operations, or frighten, alarm or inhibit others. Verbal intimidation may include making false statements that are malicious, disparaging, derogatory, disrespectful, abusive, or rude.”

 And, “workplace violence” is defined as:

“An action, whether verbal, written, or physical aggression, that is intended to control, cause, or is capable of causing injury to oneself or other, emotional harm, or damage to property.”.

 All OSHA employees are required to “treat all other employees, as well as customers, with dignity and respect. Management will provide a working environment as safe as possible by having preventative measures in place and by dealing immediately with threatening or potentially violent situations. No employee will engage in threats, violent outbursts, intimidations, bullying harassment, or other abusive or disruptive behaviors.”

The manual states that the Assistant Regional Administrator/Director for Administrative Programs or equivalent unit will:

1. Disseminate the workplace violence policies and procedures to all employees;

2. Provide annual training on this policy and U.S. Department of Labor workplace violence program for responsible OSHA Manager(s); and

3. Conduct an investigation and complete a Workplace Violence Incident Report for all incidents reported. The report will be submitted to the Regional Administrator within 24 hours of completion.

Congress created the OSHA  to ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. OSHA is part of the United States Department of Labor.

CareerBuilder:1 IN 4 Workers Bullied

This is one of the largest surveys to date and it provides still more evidence of the pervasiveness of unaddressed bullying in the workplace and the devastating impact that it can have upon the target and the employer. Other surveys have found a higher percentage, including the 2010 Z0gby International Survey, in which 35% of workers said they  eexperienced bullying firsthand .- PGB

Twenty-Seven Percent of Workers Bullied 

April 20, 2011 – A  CareerBuilder survey   of 5,671 U.S. workers reveals that more than one in four (27 percent) workers have felt bullied in the workplace, with most neither confronting nor reporting the bully.

The most common bully? The boss.

According to survey results, 14 percent of workers felt bullied by their immediate supervisor, while 11 percent felt bullied by a co-worker.  Seven percent said the bully was not their boss but someone else higher up in the organization, while another 7 percent said the bully was their customer.

 Bullying reports by gender and age

  • Comparing genders and age groups, the segments that were more likely than others to report feeling bullied were women, workers ages 55 or older (29 percent), and workers age 24 or younger (29 percent).
  • Women reported a higher incidence of being treated unfairly at the office.  One-third (34 percent) of women said they have felt bullied in the workplace, compared to 22 percent of men. Of course, this doesn’t mean fewer men are bullied, necessarily — just that fewer men report it. And, according to research by organizational behavior and leadership expert Denise Salin, women are more likely than men to self-label as a target of bullying.
  • Workers ages 35 to 44 were the least likely to report feeling bullied, with only one in four doing so … .

When asked to describe how they were bullied, workers pointed to the following examples:

  •      My comments were dismissed or not acknowledged (43 percent).
  •     I was falsely accused of mistakes I didn’t make (40 percent).
  •     I was harshly criticized (38 percent).
  •     I was forced into doing work that really wasn’t my job (38 percent).
  •     Different standards and policies were used for me than other workers (37 percent).
  •     I was given mean looks (31 percent).
  •     Others gossiped about me (27 percent).
  •     My boss yelled at me in front of other co-workers (24 percent).
  •     Belittling comments were made about my work during meetings (23 percent).
  •     Someone else stole credit for my work (21 percent).

 What are companies doing to combat this workplace bullying?

Twenty-eight percent of workers who were bullied brought the situation to a higher authority by reporting the bully to their Human Resources department. While 38 percent of these workers stated that measures were taken to investigate and resolve the situation, the majority of workers (62 percent) said no action was taken.

…. workplace bullying …  seems to be prevalent in organizations that support, accept or allow such behavior, or where employees feel that they can “get away with it” or where it is accepted as part of a “tough” climate.” Even worse, new employees and managers can become socialized into treating bullying as a normal feature of working life.

New York’s Healthy Workplace Bill (2010)

*  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

S1823B Summary 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.
S1823B Text

S T A T E O F N E W Y O R K
1823–B
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.