Other Federal Laws

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:

Duties

(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).

Federal Discrimination Laws

Most workplace bullying falls outside the parameters of federal discrimination laws. However, workplace abuse may be the result of illegal discrimination and, if so, you may be able to file a lawsuit seeking damages from your employer. Federal laws prohibit discrimination on the basis of age, disability, national origin, genetic information, pregnancy, race/color, religion and sex. These laws generally cover employees, applicants for employment, former employees and applicants to, and participants in, training and apprenticeship programs. An employer may include private sector and state and government entities, depending on the law. These laws also make it illegal to retaliate against a person who has complained about an equal employment opportunity violation, or participated in filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute. The U.S. Equal Employment Opportunity Commission (EEOC) enforces most of these laws (Go to: www.eeoc.gov). Here is a list of major federal laws relating to employment discrimination: RACE AND COLOR, RELIGION, NATIONAL ORIGIN, OR SEX

  • Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate on the basis of race, color, religion, national origin, or sex. It is also illegal to harass a person because of that person’s race, color, national origin or sex. Harassment goes beyond simple teasing or an offhand comment; it generally must be severe and frequent, creating an hostile or offensive work environment or resulting in an adverse employment decision (such as being fired or demoted). The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

PREGNANCY

  • Title VII was amended by The Pregnancy Discrimination Act of 1978 (PDA), which makes it illegal to discrimination against a woman because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.

EQUAL PAY

  • The Equal Pay Act of 1963 (EPA) makes it illegal to pay different wages to men and women if they perform the same work in the same workplace. The jobs must be substantially equal and all forms of compensation are covered, including salary, overtime pay, bonuses, stock options, etc. The EPA protects both men and women.
  • Title VII, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA) also prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age or disability. Unlike the EPA, there is no requirement that the jobs be substantially equal.  The Lilly Ledbetter Fair Pay Act of 2009 establishes that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began.

AGE DISCRIMINATION An egregious double standard exists for older workers in federal discrimination law. The Age Discrimination in Employment Act,  29 U.S.C. §§ 621 et seq., makes it “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).” With any other type of discrimination lawsuit, it is enough to show that you were the victim of illegal discrimination.  But not so with age discrimination claims. To prevail on an ADEA claim, the U.S. Supreme Court saysyou must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).  In a Title VII discrimination lawsuit – when the grounds are discrimination on the basis of  sex, race, color, national origin or religion – it is enough to show the discrimination was a motivating factor for the adverse job action (i.e. demotion or dismissal). So … In an ADEA claim, if your employer can point to any other reason for termination– and who hasn’t been late or disagreed with their boss – your lawsuit may be thrown out of court by a judge before it even gets to a jury.  This, despite he fact that you can show that you were the victim of blatant and reprehensible age discrimination. Why are older Americans treated like second class citizens?   I suggest you ask your Congressional representative and U.S. Senator.  Personally, I can’t think of one good reason except, perhaps, that big business has better lobbyists. DISABILITY

  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA),  prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. A disability is a physical or mental impairment that substantially limits one or more major life activities. Employers are required to reasonably accommodate the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or an employee, unless doing so would impose an undue hardship on the operation of the employer’s business.
  • Sections 501 and 505 of the Rehabilitation Act of 1973 make it illegal to discriminate against a qualified person with a disability in the federal government.

GENETIC INFORMATION

  • The Genetic Information Nondiscrimination Act of 2008 (GINA), which took force on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members.

SEXUAL HARASSMENT

  • The Equal Employment Opportunity Commission promulgated guidelines (Sec. 1604.11) pursuant to the adoption of Title VII of the Civil Rights Act of 1964 that make sexual harassment illegal. This includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:  made either explicitly or implicitly a term or condition of an individual’s employment; submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or; such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. With respect to fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) know or should have known of the conduct, unless it can show that it took immediate appropriate corrective action.

CITIZENSHIP STATUS AND NATIONAL ORIGIN

  • Claims of discrimination based on citizenship status and national origin are covered both by Title VII of the Civil Rights Act of 1964 and by the Immigration Reform and Control Act of 1986 (IRCA).
  • The IRCA states that employers cannot discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. Also, employers cannot discriminate on the basis of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylumees. For example, citizenship verification must be obtained from all employees, not just “ethnic” looking employees.The IRCA is implemented by the U.S. Department of Justice, Civil Rights Division, Office of the Special Counsel for Immigration Related Unfair Employment Practices.
  • Title VII prohibits discrimination on the basis of national origin. It bars discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. This law is administered by the EEOC.

STATE HARASSMENT/DISCRIMINATION LAWS

  • 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.

Other State Remedies

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.

  • Defamation.

    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.

  • False imprisonment.

    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.

  • Constructive dismissal:

    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.

(05/11)