Proposed Legislation Stands Up to Workplace Bullies

Shannon Green

Corporate Counsel

10-01-2012

Everyone knows what bullying looks like in a school setting: bullies steal lunch money, pull girls’ hair, and shove band geeks into their own lockers. But what exactly does it mean for adults to be bullied in the workplace? No state has yet to pass legislation defining a cause of action, but according to experts, claims of workplace abuse are nonetheless on the rise. Their advice to employers: the time to train your workforce is now.

Legislation is currently pending in New Jersey, and 21 states have proposed laws on workplace bullying since 2003. The Workplace Bullying Institute advocates state passage of the Healthy Workplace Bill [PDF], drafted by Suffolk University Law School professor David Yamada.

Practitioners are using the proposed legislation to create workplace training based on what their state laws would look like if passed. The bill defines workplace bullying as the “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: verbal abuse; offensive conduct/behaviors (including nonverbal) which are threatening, humiliating, or intimidating; work interference—sabotage—which prevents work from getting done.”

In her management-side employment practice, Sharon Parella says she is seeing more and more claims of workplace bullying every month. The Morrison & Foerster partner says the allegations are significant, and they involve claims against all levels of employees.

“We’ve received claims where an employee is laughed at, teased, poked at incessantly by other employees in the group, excluded from social interactions,” she says. She often sees “an employee who is being really sabotaged at work, not being given help with assignments that he or she needs to be successful, or worse, being undermined so that his or her assignments are done poorly.”

According to a 2010 study by WBI, 35 percent of U.S. workers report having been bullied at work. There has been substantial press coverage of abuse in the workplace in recent years, and despite a dearth of legislation, Parella says employees are choosing to file claims anyway.

Absent a statutory basis for bringing suit, some employees are piggybacking claims onto other discrimination complaints. Others are using employee handbooks as a hook—if an employer has a policy requiring its workers to conduct themselves professionally, Parella says an individual might claim their reliance on that policy qualifies them to sue for breach of contract. Workplace bullying, she says, “feels wrong to them, so they feel like it should be addressed, even if there isn’t a specific avenue for doing that.”

The increasing prevalence of claims prompted Parella to develop an anti-bullying tab on the firm’s recently launched employment law mobile app, Advance@Work. She also now incorporates training on workplace bullying into the standard sexual harassment and anti-discrimination training she’s been administering for years.

“I don’t think these will surpass discrimination claims,” Parella says, “but I do think these claims will be as prominent as discrimination over time.” She advises employers to investigate and take every claim of workplace bullying seriously, “because of the pending legislation, because of the growing awareness of these types of claims, because the claim might fit into another box.” But the most important reason companies should ferret out bullies, she says, is that they’re terrible for the workplace.

According to WBI, in its most severe forms, bullying can cause all sorts of stress-related health issues, including hypertension, autoimmune disorders, depression, anxiety, and post traumatic stress disorder. “Where bullying is prevalent in a workplace, invariably you see employees who have poor attendance,” says Parella, or “who are unfocused because they’re always either looking for another job or trying to deal with or respond to having been bullied.” She says that even if an employer is only concerned with retention and profitability, “it has been demonstrated repeatedly that a workplace filled with abusive conduct suffers in this regard.”

But training can help. Parella recommends training for all employees and enhanced education for managers, who are responsible for not just their own behavior, but also that of their subordinates. “I really believe in educating employees because I think the majority of the conduct that I’ve seen in my practice over the years comes from employees who simply do not understand the implications of their behavior,” she says.

WBI director Gary Namie, Ph.D., and his wife Ruth Namie wrote two books on the subject, The Bully-Free Workplace: Stop Jerks, Weasels, and Snakes From Killing Your Organization (Wiley, 2011) and The Bully At Work: What You Can Do to Stop the Hurt and Reclaim Your Dignity on the Job (Sourcebooks, 2000). Namie says the goals of the proposed bill are to provide for legal redress where none currently exists and to incentivize employers to voluntarily address workplace bullying. “The bill is a very sophisticated piece of legislation that a good employer does not have to fear,” he says, adding that in order to be exempt from vicarious liability, an employer just needs to create and enforce a reasonable bullying prevention and protection policy.

Namie notes that state chambers of commerce and the National Federation of Independent Business have been the groups mounting the primary opposition to the bill. Opponents contend that the law could harm job creation, and that existing discrimination and intentional infliction of emotional distress laws sufficiently address the conduct at issue.

A spokesperson for the NFIB did not respond to a request for comment.

Steve Roberts is president of the West Virginia Chamber of Commerce, which opposed his state’s proposed bill this summer. In his view, bullying is not prevalent in the state, and he doesn’t recall the topic generating much discussion when the legislature was in session. “We’re not in any way in support of workplace bullying,” says Roberts. But he says the chamber found the language of the bill to be overly broad and its definitions unclear. If passed, he says, “it wouldn’t have solved the problem.”

Namie says the vagueness claim is unfounded. “Sexual harassment is pretty vaguely defined,” he notes. “In fact, I think our definition [of bullying] is much more precise.” The bill also requires an employee to show they’ve experienced harm. “If you haven’t traumatized somebody or generated clinical depression or fired them for reporting the conduct,” says Namie, “you’re off the hook.”

There were 84 New York Assembly co-sponsors for the bill last session, and Namie expects that the legislation is on the brink of passing in the Empire State, as well as in Massachusetts. He thinks that when it passes and other states begin to join in, “it will lead to probably the most significant change in employment law since civil rights legislation.”

Namie says most employers don’t currently address the issue of workplace bullying because in the absence of a law they don’t have to. Despite what he calls “epidemic” levels of abuse, Namie says for now, bullying is essentially “undiscussable in the corporate world.”