Still Far From a National Workplace Bullying Solution

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

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

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

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

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

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

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

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

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

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

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

What would Martin Luther King say?

Change and Workpace Discrimination

  •  Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom. A man can’t ride you unless your back is bent.
  •  He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it.
  •  Human progress is neither automatic nor inevitable… Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.
  • I am not interested in power for power’s sake, but I’m interested in power that is moral, that is right and that is good.
  • Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.
  • The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.
  • When you are right you cannot be too radical …

The 1877 Master and Servant Rule Lives!

If you wonder why American workers need protection from workplace bullying, consider last week’s decision by a federal appeals court in Chicago regarding a 51-year-old plant  manager who was fired by Sun Chemical Corp. in 2009.

George Widmar, 51, was a plant manager for 16 years who was fired in 2009 by Sun Chemical, denied severance pay and publicly accused of  having “screwed up” the plant. Sun Chemical argued that plant managers must accept responsibility over all aspects of a plant – even those outside the manager’s control.  The U.S. Court of Appeals for the 7th Circuit in Chicago agreed.

The appeals court did not discount the possibility that everything Widmar claimed had happened to him did in fact happen. Among other things, Widmar said he was blamed for problems stemming from a flawed chemical formula and Sun’s decision to use cheap, faulty materials.  The court ruled in the case of Widmar v. Sun Chemical Corp, No. 13-2313 (November 19, 2014), that none of this mattered.

The court said the law is not concerned about employers or managers who are “unpleasant,” “unfair” or “too hard” on employees. The law is not concerned if an employer/manager has a “nefarious motive,” doesn’t like, or is “wrong” about an employee’s performance. Furthermore, the law doesn’t care if the company creates conditions that make it impossible for a worker to succeed.

All the law cares about, said the appeals court, is whether an employee can prove illegal discrimination.

Paradoxically, of course, it is impossible to prove illegal discrimination if the law doesn’t care that the employer had nefarious motives, was wrong about the employee’s performance and created conditions that made it impossible for the manager to succeed. What’s left? Is it fair to expect an employer to tell an employee outright that it is intent upon violating federal discrimination laws?  Sometimes all a worker can do is point to harassment and unfair policies and expect the law to care.

Many industrialized countries do care when employers engage in unfair and destructive employment practices. They have adopted workplace bullying laws and policies to protect workers.  The European Union in 2000 adopted The Charter of The Fundamental Rights of the European Union, which declares that “every worker has the right to working conditions which respect his or her health, safety and dignity.” Overwhelming research shows that workplace bullying has serious short-term and long-term impact upon the health of targets.  The European Framework Agreement on Harassment and Violence at Work in 2007 states that employers have a duty to protect workers from harassment and violence in the workplace.

America’s employment law is based upon an obscure policy concocted in 1877 by an Albany attorney and treatise writer, Horace Gray Wood. He created the “Master and Servant” rule that  provides when a hiring is indefinite, the burden of proof is on the servant to prove that an indefinite employment term was for one year.  Courts expanded Wood’s theory, which was based upon a scant four court decisions,  into the “employment at will” rule which reigns today and permits an employer to fire an employee without reasonable cause (except when the cause violates the law).  So Widmar legally could be fired without reasonable cause and his mistreatment ignored because the court declared his evidence was insufficient to show illegal discrimination.

Widmar was a senior employee with sufficient resources to hire and attorney and file a lawsuit and an appeal. One can only wonder how Sun Chemical treats lesser employees who are denied access to America’s archaic courts because they can’t afford hefty attorney fees and court costs or navigate a system that is profoundly intolerant of  self-represented litigants.

Why are Americans satisfied with working conditions that other countries find barbaric? Never mind Widmar. Why do the poorest and least powerful workers continually elect politicians who either ignore them once they get into office or actively fight against their interests to advance the goals of multi-national corporations?  And yet, the Master Servant rule lives.

Workplace Bully Targets Suffer Without Law

New Jersey – Kevin M. Costello,  a New Jersey attorney, said he turns away more than 2,000 people a year who are seeking his help to combat workplace bullying.

“These are people who have panic attacks.  Their hair is falling out.  They are throwing up blood … They ask, ‘Why can’t you help me?’ ‘Why isn’t there a law?” said Costello, who spoke at the first conference of the National Workplace Bullying Coalition at Rutgers School of Law earlier this month. “I can’t stand saying ‘no’ to that many people,” said Costello.

Costello is assisting New Jersey State Sen. Linda Greenstein,  assistant majority leader of the NJ Senate,  in crafting a proposed state law to address workplace bullying.

Sen. Greenstein said the bill will help targets who are under “extreme stress. What we’re looking for here is not your everyday not-so-pleasant workplace … We’re looking for very serious situations.”

Costello, who specializes in employment rights, said there are no viable options at present for victims of workplace bullying, especially those who do not fall within a protected class under state or federal anti-discrimination laws (i.e., race, sex, religion, color, national origin).

Critics of workplace bullying legislation often argue that such legislation will add to the cost of doing business in New Jersey, make the state  less competitive and  ultimately would harm the state’s economy.  Costello said the same concerns were raised in the past and were unfounded.

“Why should we do something about child labor? The economy would suffer if we didn’t hire children … Why should we pay women the same amount as men? They have husbands … What do you mean Occupational Safety and Health Act?  I want to make sure the economy doesn’t suffer,” he said. “At the end of the day, this is a bill whose time has come.”

More than 100 attorneys, union officials, policy makers and targets of workplace bullying attended the April 4 conference of the NWBC,  the first national organization formed to address the problem of workplace bullying.

Meanwhile, 27 percent of U.S. workers are either experiencing abusive conduct at work or did so in the past, and 21 percent have witnessed it, according to a 2014 national survey by the Workplace Bullying Institute.  The survey also found that almost three-quarters of employers have done nothing to curb workplace bullying.  An estimated  93 percent of  respondents in a national survey said they support enactment of legislation to protect employees from abusive conduct at work.

* Disclaimer:  I am a co-founder and member of the NWBC.

Article in Family & Intimate Partner Violence Quarterly

My interest in workplace bullying began about five years ago when I moved across the country with my then 14-year-old son to take a job at a non-profit organization that works in the national arena of intimate partner abuse.

I quickly discovered that my new employer had a bullying management structure, which led to a succession of lives interrupted by trauma, a revolving door of needless turnover, and  a colossal waste of resources that should have gone toward halting domestic violence.

Managers used abusive tactics that were similar to those used by perpetrators  of intimate partner abuse – emotional abuse,coercion, threats, harassment, withholding of information, humiliation,  sabotage, isolation, etc.   Workplace bullying involves the misuse of supervisory privilege to exert improper power and control over the target.

One of the first things I did upon leaving this awful place was to write  an article for The Domestic Violence Report., a national publication devoted  to legal developments  and  research in domestic violence law and prevention.

I posed a question in the article that I don’t think was asked before, at least in a domestic violence circles. What happens after batterers leave their homes and go to work?  Do they suddenly become respectful of others and treat their subordinates and co-workers fairly and with dignity? I argued that abuse is a spectrum that includes workplace bullying, as well as intimate partner, child and elder abuse.

I am pleased to note that an updated version of that article has been reprinted in the most recent issue of the Family & Intimate Partner Violence Quarterly,  edited by Mo Therese Hannah, Ph.D.  The Quarterly is a journal devoted to bringing professionals in the field a practical focus on the best new ideas for preventing, prosecuting, and treating family and intimate partner abuse.

The Domestic Violence Report, a publication of the National Civic Institute, was then edited by Joan Zorza, J.D., a true pioneer in the area of domestic violence.   (My former boss had prohibited me from using citations to Ms. Zorza’s many groundbreaking books and articles because she had the temerity to criticize my boss and the organization in the past.)

In just five years, there’s been an explosion of interest in the topic of workplace bullying and abuse. Most Human Resource officials today are at least aware of the problem and many workplaces have adopted general policies prohibiting bullying. However, there has been virtually no movement toward a real solution to the problem  – a federal law or regulations protecting targets of a hostile workplace environment caused by workplace bullying .   Sign the petition!

Another thing I learned at my former workplace is that bullies are not always just individuals. Employers also can be bullies. The organization for years misclassified administrative employees as “exempt” under the Fair Labor Standards Act.  These mostly young women with children were forced to work endless hours at out-of-state conferences without receiving overtime pay or even compensatory time off. After I left the organization, one of them apparently complained and the organization was forced to repay at least those who still worked there back wages.

Who’s Got Their Head in the Sand?

A federal judge has concluded that the U.S. Court of Appeals for the Seventh Circuit in Chicago did not violate the Code of Judicial Conduct when it ridiculed an attorney in a written opinion.

Circuit Judge Joel M. Falum, who was assigned to decide a complaint filed by the attorney, said the offending opinion  a three judge panel of the appellate did not impede the administration of justice by the court.

The 7th Circuit panel included in its written opinion two photos – one featuring an ostrich with its head in the sand and the other depicting a suited man with his head in the sand.

Judge Falum ruled on Dec. 21 that the photos were evidently meant to depict “complainant’s willful avoidance of dispositive legal authority that was repeatedly brought to complainant’s attention.”

The attorney who was the butt of the panel’s  “humor” complained that the judges violated a requirement that judges be “patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

Judge Falum interpreted the question for decision as whether the “photo-enhanced opinion” had a prejudicial effect on the effective and expeditious administration of the business of the court.  “The inclusion of photographs to underscore a decision already reached by the court could not have such an effect,”  he decided, dismissing the complaint.

With all  respect to Judge Falum,  it is highly unlikely that a judicial panel furthers the administration of justice when it humiliates an attorney with which it disagrees in the course of denying the attorney’s requested relief.  It certainly doesn’t foster confidence among victims of workplace abuse when the court demeans the professionals who appear before it with hats in hand.   And, by the way, progress often occurs solely because an attorney challenges dispositive legal authority. (Remember slavery and women’s suffrage?)

Ridicule is a common tactic in workplace bullying scenarios.  Targets often are the subject of treatment that is designed to embarrass or humiliate them.  Such treatment can take a profound emotional and physical toll on the target.

The identity of the parties involved in the dispute were not disclosed – neither the complainant nor the three judges.  The case is In Re. Complaints Against Three Judges, Nos 07-11-90072-90074.

Postscript – It’s a myth that ostriches bury their heads in the sand. They don’t. A male ostrich digs large holes (up to 6 to 8 feet wide and 2-3 feet deep) in the sand to make a nest. Predators cannot see the eggs across the countryside which gives the nest a bit of protection.

National Coalition to Tackle Workplace Bullying

I am pleased to announce that this blog is a founding member of the National Workplace Bullying Coalition (NWBC), the first organization dedicated to seeking a national solution to the problem of workplace bullying in the United States.

The NWBC proposes a convention, similar to a constitutional convention, to detail the nature of workplace bullying, the negative consequences to both employers and employees, how today’s business leaders address the issue and what remains to be accomplished. The NWBC supports state and local efforts to address workplace bullying but the goal ultimately is to achieve a national  law or regulations that  provides employers with incentive to insure a safe, healthy and bully-free workplace for all employees.

Many developed countries around the world already have legislation in place to address workplace bullying. However, in the vast majority of workers in America workers have no protection unless they can shoehorn their claim under an existing law, such as Title VII of the Civil Rights Act of 1964, which protects individuals on the basis of race, sex, religion & national origin.

The Workplace Bullying Institute has backed state legislation, the proposed Healthy Workplace Bill (HWB), since 2002.  Versions of the HWB have been proposed in more than 20 states but none of the bills have passed, raising questions about the viability of this approach.  Also, it is highly unlikely that  so-called “pro business” states will willingly adopt workplace anti-bullying legislation, leaving employees with no recourse.

Nevada State Senator Richard Segerblom of Las Vegas, NV, has proposed a different solution to the problem of workplace bullying that some consider to be more promising than the HWB approach.  Segerblom has proposed amending Nevada’s employment discrimination law so that  anyone who is a victim of a hostile workplace environment has a legal remedy whether or not they can show illegal discrimination. In other words, he has proposed making the hostile workplace remedy “status blind.”

Many national surveys show that workplace bullying is epidemic in the United States.  CareerBuilder in 2011 found that one in four workers in the United States experience workplace bullying, which has potentially severe mental and physical health impacts.  Most targets of workplace bullying are expelled from the workplace – fired or forced to quit – and many suffer the symptoms of post traumatic stress syndrome for years afterward.

The NWBC is an outgrowth of New Jersey workplace anti-bullying efforts and a loose-knit coalition called  Protect U.S. Workers, created by this blog and documentary filmmaker  Beverly Peterson of Our Bully Pulpit.  The NWBC supports the on-going petition drive by Protect U.S. Workers’  calling upon the Obama administration and the Secretary of Labor to adopt a national approach to workplace bullying.

Membership  in  the new coalition includes The Honorable Sue Pai Yang, who retired in 2012 after serving as  the  first Asian American appointed to the Workers’ Compensation Court in New Jersey;  Jerry Carbo, Esq.  an Associate Professor of Management at the Grove College of Business at Shippensburg University, Pennsylvania, who has researched and  written  about workplace bullying.; Catherine Mattice.  who runs the consulting business, Civility Partners, LLC, which specializes in helping organizations realize positive workplace cultures; and The Honorable Stephen Tuber is a retired Judge of the New Jersey Division of Workers’ Compensation – 1981 – 2009).


Iowa Shoots Foot in Discrimination Case

Liable for Retaliation, not Discrimination

Here’s every employer’s nightmare.

A jury in Iowa last week awarded a former state employee $130,000 in damages after finding she was fired from her state job as a mailroom clerk in retaliation for  filing a complaint about race discrimination.

The jury, however, said there was no evidence that Dorothea Polk, 53, who is black, was a victim of race discrimination.

This means that the damages are attributable to the inept handling of her race discrimination complaint by the state of Iowa.

Polk said she spoke with a human resources officer, Jackie Mallory after Polk was passed over for promotion to a clerk’s job in the office of  Iowa Workforce Development.  During the conversation, Polk said that Mallory told her “You people think you’re entitled to preferences.”

Polk filed a complaint with the Iowa Civil Rights Commission alleging race discrimination in May 2006 and was fired two months later.   Polk’s  managers said she was ineffective at running the office’s mail room and “disrespectfully challenged authority.”

The jury verdict came after a two-week trial.

Another issue in Polk’s case involved an allegation by her attorneys that the state destroyed or lost a report commissioned by former Department of Administrative Services director Mollie Anderson that said racism played a part in some decisions made in the Iowa Workforce Development office. In a 2008 video deposition shown to jurors in the trial Anderson said she’d seen the report, Polk’s attorneys said.

No copy of the report, however, was produced by the state for trial.

In his closing arguments, Assistant Iowa Attorney General Tyler Smith disputed that a “secret report” ever existed, arguing that Anderson misspoke or was confused during a deposition in another case.

The lesson – an employer can be found liable for retaliation even if a jury finds there is no substance to the underlying complaint.


Bullying in the NFL Workplace

Even Football Players Hurt When Bullied

It may seem rather silly that a participant in a sport that is so brutal that it causes its players to suffer brain damage would throw in the towel because of taunts and insults by teammates.

But the actions of 6’5″, 315-pound Miami Dolphins tackle Jonathan Martin, 25,  are a testament to the damage that workplace bullying can inflict upon targets.

Martin walked off the job recently because he could no longer the endure “abusive environment” that he allegedly has suffered during his one-and-a-half seasons with Miami.  The last straw reportedly came on Monday when he sat down to eat lunch with several other players and they stood up and left when he tried to join them

Dolphins guard Richie Incognito, who is allegedly one of the players who has harassed Martin, was suspended this week for conduct detrimental to his team.  He allegedly sent Martin racist and threatening texts and voicemails.

Research shows that workplace bullying can fell even the mightiest in our society.

Workplace abuse  causes targets to suffer potentially severe mental and  physical illness, including mood and sleep disturbances, upset stomach, panic attacks, headaches etc.  Evidence is accumulating to suggest that stress plays an important role in chronic health problems, including cardiovascular disease, musculoskeletal disorders, and psychological disorders. Bullying targets frequently report experiencing Post Traumatic Stress Syndrome for years after they leave a job in which they were bullied..

There are many well-publicized cases of suicide that are related to workplace bullying, including the recent suicide of the Chief Financial Officer Pierre Wauthier, 53, of the multi-national insurance company, Zurich Insurance Group in Switzerland. He left a note blaming his new boss, who a day after Wauthier’s suicide resigned.

Miami Dolphins Coach Joe Philbin said the NFL is going to conduct a comprehensive and objective review of the workplace environment  and the Dolphins will fully cooperate as an organization.

Individuals who are  experiencing workplace bullying are encouraged to read my book, Transcend Your Boss: Zen and the Difficult Workplace, to gain some coping strategies.  They are also encouraged to sign a petition demanding that the Obama administration address the problem of workplace bullying in our society.

Another Defeat for Healthy Workplace Bill


The decade-long strategy of adopting state-by-state legislation to deal with workplace bullying in the United States has suffered yet another defeat.

The Maine House of Representatives recently voted 87-56 to sustain Maine Gov. Paul LePage’s veto of a bill aimed at bullying in the workplace that had been adopted by Maine’s legislature.

 The bill, which was supported by the Workplace Bullying Institute (WBI), directed the Maine Workers’ Compensation Board to study psychological and physical harm employees suffer due to abusive work environments. 

 In his veto message, the governor said the study was unnecessary because the Workers’ Compensation Board already provides benefits to employees who suffer physical and psychological injuries on the job.

 Maine was the 24th state to consider some version of the WBI’s proposed  Healthy Workplace Bill  but no state has yet to adopt it.

 This blog advocates a federal and national solution to the problem of workplace bullying, which affects one in every three or four workers in the United States. So far about 8,000 targets of workplace bullying have signed a petition demanding action from the Obama Administration.

 Ruth and Gary Namie, founders of the WBI, have led  a decade-long campaign to pass proposed legislation called The Healthy Workplace Bill.

 Drafted by Suffolk University Law Professor David Yamada, the bill was overhauled earlier this year after criticism by workplace anti-bully advocates that it offered far less protection to targets of workplace bullying than similar legislation in other countries.  

The Namies, who aggressively market consulting services and book sales on the WBI web site,  and Mr. Yamada, who formed an organization called The New Workplace Institute, have not cooperated with other workplace anti-bully advocates who formed a coalition last year (Protect US Workers) to  support a federal solution to workplace bullying.

America lags far behind Europe, Canada, Australia and many other industrialized countries in protecting workers from bullying, which is widely considered to be a health-harming form of workplace violence..