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.

Federal Agencies Study Workplace Bullying

While federal and state laws to address workplace bullying remain elusive, the U.S. government is moving forward to address the problem.

The  U.S. Merit Systems Protection Board (MSPB) recently placed “nonsexual harassment” on its research agenda for 2015-2018.  In the past, the MSPB has focused on sexual harassment but it has not previously addressed the problem of general harassment or workplace bullying. The Board states it will study ways to foster effective work environments by eliminating nonsexual harassment.

Meanwhile, the EEOC last month formed a Select Task Force to examine the problem of workplace harassment and look at ways by which it might be prevented. EEOC Commissioner Jenny Yang said 30 percent of the charges received by the EEOC each year include harassment complaints. The task force, which includes 16 members from around the country,  will hold a series of meetings, including public meetings, in the year ahead.

The Occupational Safety Health Administration signed a union agreement in 2011 that provides protection against workplace bullying to its own workforce. Unfortunately, OSHA, which is charged with insuring the safety of America’s private sector workers, has yet to extend these same protections to workers outside OSHA.

According to the MSPB: “Nonsexual harassment is particularly inappropriate when the perpetrator is a supervisor or otherwise exercises official authority over the employee,” states the MSPB.

The MSPB states that federal employees should be aware of the problem of nonsexual harassment and “cognizant of the hazards of nonsexual harassment and strategies to extinguish this behavior before it undermines the quality of their workplace.”

Specifically, the board will study:

  • How do federal employees define nonsexual harassment?
  • How prevalent is it in the federal workplace?
  • Who are the most common perpetrators and victims of nonsexual harassment?
  • What effect does nonsexual harassment have on federal workplace outcomes like retention and turnover, motivation, engagement, job satisfaction, and leader trust?
  • Do federal employees believe that appropriate action is being taken to address nonsexual harassment?
  • What strategies, both effective and ineffective, are used to address it?

The MSPB is an independent, quasi-judicial agency in the Executive branch that hears employee appeals of decisions of the Civil Service Commission, reviews significant actions of the U.S. Office of Program Management, and performs merit system studies.

There is overwhelming evidence that workplace bullying causes targets to suffer  potentially severe mental and physical health impacts.  Employers pay the price for bullying in the form of personnel turnover, low morale and absenteeism, higher health care costs and unnecessary litigation

OSHA Rule Would Reveal Rogue Employers

librarycongress.twolaborersThe truth of the adage that knowledge is power is evident in backlash against the Occupational Safety and Health Administration’s proposed rule to publicize companies’ health and safety records.

OSHA wants to eventually create a public web site containing workplace health and safety information. Businesses already have to report this information to OSHA and this information already supposedly  is public. In reality, however, the information is not accessible.

At present, an employee has to submit a formal information request to a government bureaucrat or  an often reluctant and suspicious employer. Moreover, this needlessly arduous and time consuming process makes it is virtually impossible to compare workplaces and industries.  (e.g., Is this mining company a callous rogue or simply a representative of a dangerous industry?)

Released in November 2013, the proposed rule requires electronic submission of workplace illness and injury data information. The agency will provide a secure website for data collection and insures that any data publicized will not include employee-identifying information. In a press release,  OSHA argues that timely, establishment-specific injury and illness data “will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.”

As usual, the opposition is led by the U.S. Chamber of Commerce,  fresh from its victory in defeating a proposed rule by the National Labor Relations Board  to require employers to post notices informing workers of their right to work together to improve their working conditions under the National Labor Relations Act (NLRA).

At a public meeting called by OSHA earlier this month, Baruch Fellner, a partner of Gibson, Dunn & Crutcher LLP, which represents the national chamber, argued that OSHA is not authorized by statute to create a new, publicly searchable database of workplace injury and illness records.”This is completely beyond OSHA’s mandate,” decried  Fellner. (This was the chamber’s winning argument  to defeat the NLRA posting rule.)

Opponents contend that making employers’ injury and illness data publicly available could unjustly harm an employer’s reputation because the data would not be put into context or include information about the employer workplace safety programs and improvements. They also expressed concern for the potential misuse of this data by business competitors or (gasp!) trial attorneys.

It is certainly understandable that businesses with inordinately high numbers of workplace casualties would want to keep this information under wraps. However, that same argument could be made by convicted felons and sex offenders. Which begs the question – why is the U.S. Chamber of Commerce choosing to align itself with rogue businesses that create or tolerate  conditions that result in needless workplace injuries and deaths.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, says the  reporting rule would permit employers, employees, the government and researchers to have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities. He notes that the proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA.

It seems obvious that true public disclosure of health and safety data could change the equation for employers that now consider employee injuries and deaths to be cheaper than spending money on best practices and workplace safety.

If this is not OSHA’s mandate, what is?

The public has until Feb. 6, 2014, to submit written comments on OSHA’s proposed rule.

Under the proposed rule, initially establishments with more than 250 employees are required to electronically submit the records on a quarterly basis to OSHA. Establishments with 20 or more employees, in certain industries with high injury and illness rates, are required to submit electronically only their summary of work-related injuries and illnesses to OSHA once a year.

Hockey Faceoff Raises Bigger Questions

This is an era that is challenging the violent foundations of America’s major sporting institutions.

On a broader scale, it also is testing the extent of an employer’s responsibility to its employees.

This week, ten former hockey players for the National Hockey League (NHL) filed a federal class action lawsuit alleging the NHL failed to protect them from concussions and injuries that allegedly contribute to dementia and other brain ailments later in life.

The NHL lawsuit follows the settlement  last August of a similar lawsuit against the National Football League in which the NFL agreed to pay $765 million to settle claims from former players alleging the NFL failed to protect them from brain damage caused by repeated concussions.

Off the field or rink, if an employer knowingly permits working conditions that cause employees to suffer serious injury, the employer might be investigated and perhaps even prosecuted by federal authorities. (i.e.  prosecution of Massey Coal Mine official, 2012).

The Occupational Safety and Health  Act requires employers to provide their employees with work and a workplace free from recognized, serious hazards.  The Occupational Safety and Health Administration regularly investigates employers who fail to provide workers with proper safety equipment, resulting in injuries.

Why are injuries that stem from working in a mine or with heavy machinery more serious than injuries that result from playing a professional sport?  Professional sports may be big business but they are fundamentally just entertainment. Shouldn’t the U.S. Department of Labor hold all employers to the same standard?

Unnecessary Violence

I attended hockey games in the 1990s because I enjoyed watching the skill of players on ice skates handling a hockey puck  traveling 100 miles per hour down the ice.  But each game featured  players slammed violently against the plastic partitions and bloody battles over nothing more than macho posturing. I stopped going because it was too violent.

One of the players I watched in Pittsburgh was Bradley Aitken, who is a named plaintiff in the NHL  lawsuit.

It never occurred to me that Aiken and other players were potentially incurring permanent brain damages  but, according to the lawsuit, the NHL did know and still did nothing to protect the players.

The  NHL made it a penalty in 2010 to target a player’s head but still permits fighting and body checking.  Many hockey teams employ “enforcers” whose main job is to fight or violently body-check opponents.

“The NHL’s active and purposeful concealment of the severe risks of brain injuries exposed players to unnecessary dangers they could have avoided had the NHL provided them with truthful and accurate information and taken appropriate action to prevent needless harm,” the lawsuit says.

The players seek damages and court-approved, NHL-sponsored medical monitoring for the players’ brain trauma and/or injuries.

Bill Daly, the league’s Deputy Commissioner, issued a statement Monday: “ … [W]e are completely satisfied with the responsible manner in which the league and the players’ association have managed player safety over time, including with respect to head injuries and concussions.”

The NHL lawsuit was filed in United States District Court for the District of Columbia on behalf of players who retired on or before February 14, 2013.