Somewhat Improved Healthy Workplace Bill

… But Still Needs Work

The heretofore anemic  Healthy Workplace Bill (HWB) has received a dose of iron in its latest iteration in Massachusetts.

The version of the  HWB subpumping ironmitted for consideration to the Massachusetts’ legislature omits  the  $25,000 cap on damages for targets who were not subjected to demotion or dismissal.

The Workplace Bullying Institute has pushed the HWB, written by Suffolk University Law Professor David C. Yamada,  for more than a decade as part of state-by-state campaign to pass workplace anti-bullying legislation.  More than 20 states have considered the HWB bill since  2002 but none as yet have adopted it.  This year the bill is under consideration in about a half dozen states.

International scholars criticized the HWB in recent years because it was far less protective of targets of workplace bullying than laws and regulations of other industrialized countries.

This blog criticized the HWB’s  requirements that targets prove malice and psychological damage (the latter was expressly rejected by the U.S. Supreme Court in federal anti-discrimination laws) and the unreasonably low cap on damages.

The revised bill still defines an abusive work environment as one where “an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both.”

How would one go about providing that a  bully acted “with intent to cause pain  or distress?”  I have no idea. Suggestions?

In addition,  workplace bullying almost always involves psychological harm. The bill’s requirement to prove psychological harm penalizes poor people and members of minority groups who tend to visit mental health professionals far less frequently for monetary or cultural reasons.  In addition, this approach was explicitly rejected by the U.S. Supreme Court as a requirement in race and sex  discrimination cases involving a hostile workplace . (Harris v. Forklift System510 U.S. 17 (1993)).

The proposed  Massachusetts bill,  sponsored by Rep. Ellen Story and Sen. Katherine Clark.

A far better alternative to the problem of workplace bullying has been proposed by State Sen. Richard “Tick” Segerblom of Nevada.

Segerblom proposed extending the umbrella of  discrimination laws to protect any worker who is exposed to a “hostile work environment.”  Currently, only workers who have protected status under these laws by virtue of their race, sex, national original, etc. are protected.

If an employer or an employee are held to be in violation of the law, the Massachusetts bill  provides  that a court can  order any relief that is “deemed appropriate, including, but not limited to: reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages, and attorney’s fees.”

According to the proposed bill, an abusive workplace environment is one where “an employer or one or more its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both.”

Abusive conduct involves “acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct … .”  This includes but is not limited to:

  • repeated verbal abuse such as the use of derogatory remarks, insults, and epithets;
  • verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature;
  • or the sabotage or undermining of an employee’s work performance.

The proposed Massachusetts bill continues to distinguish between targets of  bullying who have and have not been subjected to an adverse employment action (i.e., demotion or dismissal).  The cap is gone but the latter still cannot  recover from the employer  damages for  emotional distress or punitive damages unless the “actionable conduct was extreme and outrageous.” This limitation does not apply to “individually named defendants.”  Thus, an employee who did not suffer an adverse employment action can only seek monetary damages from bully unless the actionable conduct was extreme and outrageous.

The bill also prohibits retaliation against targets who complain and anyone else who testifies, assists or participates in an investigation of workplace bullying.

The stated purpose of the Massachusetts bill is to provide a “legal incentive for employers” to prevent and respond to abusive treatment of employers at work.

Under the bill, it is  an “aggravating factor” if the abusive conduct exploits an employee’s known psychological or physical illness or disability. In that case, a single act that is “especially severe and egregious” would be actionable.

Employers  can escape liability by showing they exercised “reasonable care to prevent and correct  promptly any actionable behavior; and, the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.”

Also, employers cannot be penalized if the complaint is based on an adverse employment action made for poor performance, misconduct or economic necessity, a reasonable performance evaluation or “an employer’s reasonable investigation about potentially illegal or unethical activity.”

The bill would require an employee to  file an action within a year of  the last act that constitutes the alleged violation.

(Pick a number) Shot by Disgruntled Worker.

 The above headline, or something like it, is depressingly familiar in the  United States.

 One reason may be that almost anyone can get a semi-automatic handgun in America, which escalates what should have been  bloody nose to catastrophic proportions.

 But there is another reason too.

 American employers lack the motivation to deal appropriately with workplace conflict.  Indeed, some unscrupulous employers even use bullying intentionally to achieve a goal – like driving out good employees who assert a legal right or downsizing without paying unemployment compensation.  

 Remember the Corvair?  It was an unsafe car that was targeted a few decades ago  by consumer activist Ralph Nadar, who said the car manufacturer knew the Corvair  was unsafe but refused to make it safer because it was cheaper to settle lawsuits filed on behalf of the dead and injured. Experts know that bullying and harassment cause the target to suffer potentially severe physical and mental damage, sometimes leading to suicide or workplace fatalities.  But nobody – not even the federal government – does anything about it.  Cheaper to pay the dead and injured.

 For more than a decade, workplace anti-bully activists have lobbied without  success to pass what in reality is an incredibly weak proposed state law (Healthy Workplace Bill)  to discourage workplace bullying and harassment.

Meanwhile, many industrialized countries around the world have enacted laws and regulations that clearly place the responsibility upon the employer to maintain a safe and bully-free workplace.

 American employees who are hounded out of a job are left with a hodgepodge of ill-fitting laws to fall back on. If they do somehow manage to file a lawsuit, they are likely to  encounter a hostile judiciary.  Research shows that federal judges almost routinely dismiss discrimination cases before the case can  even get to a jury.

 This week, Jeffrey Johnson, 58, who had been laid off  as a women’s accessory designer, shot and killed a 41-year-old  manager at Johnson’s former workplace,  Hazan Imports Corp.  of New York City. Johnson fled the scene but was followed by a construction worker. Johnson took a .45-caliber semiautomatic pistol from his bag after two officers on counterterrorism patrol approached him.  As many as nine people were shot – some possibly by police – before Johnson was dead.  Johnson does not appear to have any criminal record.

There is no indication that Johnson felt bullied or harassed or that Hazan failed to properly address workplace conflict. But he was obviously a disgruntled worker.

The incident is part of the on-going volatility of America right now where it is no longer shocking to read a headline such as:  “Disgruntled Man Returns to Workplace and Kills (pick a number).”

Lost in Discussion: Employers that Bully

 They Use Strategic Harassment and Exploitation

Most people who think of workplace bullies invoke the image of the combative boss played by Alec Baldwin in Glengarry Glenn Ross or the passive-hostile magazine editor played by Meryl Streep in The Devil Wears Prada.

But some workplace bullies are not individuals but the employer itself – a fact that often gets lost in the discussion of workplace bullying. Some employers use strategic harassment tactics on workers to avoid legal obligations, such as the payment of fair wages, workers compensation or unemployment insurance.

Employers that bully promulgate policies that take advantage of their workers. For example, they steal wages from their employees by intentionally misclassifying them as exempt and thus ineligible for overtime.

The Progressive States Network estimates that low-wage workers lose $51 per week to wage theft, or $2,634 per year.  That amounts to approximately 15% of their annual income

Some employers use strategic harassment to get rid of good employees. This occurs when an employer targets one or more workers for harassment to achieve an organizational goal.  Some employers, for example, make life miserable for workers when they want to downsize without paying unemployment insurance. Or they harass a “troublemaker” who has asserted a legal right to fair compensation or overtime, essentially forcing him or her to quit.

Other employers knowingly tolerate bullies in their employ for crass economic reasons – athough that strategy can backfire.

Ani Chopourian filed at least 18 complaints with the Human Resources Dept. of Mercy General Hospital in Sacramento, CA, during the two years she worked there as a physician assistant. She was fired after the last complaint. A federal court jury in March awarded Chopourian $168 million in damages, believed to be the largest judgment for a single victim of workplace harassment in U.S. history.

Many of Chopourian’s complaints involved a bullying surgeon who she said once stabbed her with a needle. Another surgeon, she said, would greet her each morning with “I’m horny” and slap her bottom. Another called her “stupid chick” in the operating room and made disparaging remarks about her Armenian heritage, such as asking her if she had joined Al Qaeda.

Ms. Chopourian speculated that hospital administrators put up with misbehavior in the cardiac unit and tolerated the surgeons’ outsize egos because cardiac surgery tends to bring in the most money for any hospital facility.

Surveys show that workplace bullying is epidemic in the United States, where at least one in four American workers reports being bullied in the workplace.  Workplace bullying can cause a target to experience potentially severe psychological and physical illness, including clinical depression, post traumatic stress syndrome and stress-related chronic disease.

Much of the focus on the problem in the United States has involved a state-by-state campaign to pass a civil law that would allow targets of workplace bullying to seek damages from individual employers. However, such a law would do nothing to combat the systemic problem of employer bullying and abuse in the United States.

This blog is part of a loose-knit coalition of workplace anti-bully advocates that is calling upon the U.S. Secretary of Labor and the Obama administration to promulgate a comprehensive national solution to the problem of workplace bullying and abuse that would  address the problem of bullying employers.  If you agree, sign our petition at: http://www.thepetitionsite.com/1/protect-us-workers/?cid=FB_TAF.

Other Options to Halt Workplace Bullying

After a decade, questions are being raised about whether the state-by-state campaign to pass the so-called Healthy Workplace Bill (HWB) is a realistic solution to the epidemic of workplace bullying in the United States.

This blog suggested last fall that it was time to think about options other than the HWB,  which was first proposed a decade ago and has yet be adopted by any of the 20 states that have considered it. I proposed that the U.S. Secretary of Labor Hilda L. Solis empanel a task force to study the problem and propose new legislation on how to best address the problem of workplace bullying nationally.

The Vermont Senate has thrown out efforts to pass the HWB in that state and voted to create a task force to determine the best way to provide relief and redress for state residents suffering in abusive work environments.   Senate Bill 52 suggests looking at different models to remedy workplace bullying, including:

  • Create a private right of action that would include the recovery of damages (like the HWB).
  • Create a mechanism for injunctive relief similar to those relating to stalking, hate crimes, or relief-from-abuse orders.
  • State enforcement similar to the employment discrimination law.
  • State enforcement by the Vermont occupational safety and health administration.

Gary Namie, the director of the Workplace Bullying Institute, this week issued a defense of the HWB  which the institute has supported since it was drafted by Suffolk University Law Professor David Yamada in 2002.

Namie primarily argues the HWB’s private right of action is best because it is “revenue neutral” and won’t burden states financially.

For the following reasons, I support a different approach:

  •  Proponents of the HWB have been advocating for a decade to pass the HWB in individual states. Twenty states have considered the HWB so far but no state has passed a bill. One state might yet be persuaded to pass a version of the HWB but it could take decades for a significant number of states to do so.  Some extreme pro-business states will never voluntarily pass a workplace anti-bully bill, just as they have fought tooth-and-nail against other workplace protections.
  • The HWB as proposed is anemic. It contains hurdles that are not found in laws adopted in other industrialized countries, or in other U.S. civil rights laws involving the concept of a hostile work environment. These hurdles include requirements that targets prove malice and psychological injury and a $25,000 cap on damages for targets who are not demoted or fired. Many – if not most  — targets will find it difficult or impossible to obtain a meaningful remedy.  (Namie and Yamada refused to respond to questions about the troubling language of the HWB.)
  • Under the General Duty Clause of the Occupational Health and Safety Act of 1970 (OSH Act), employers are required to provide employees with a safe workplace. Overwhelming research shows that workplace bullying can result in potentially serious mental and physical harm.  The Occupational Safety and Health Administration (OSHA), which administers the OSH act, should protect workers from bullying, just as it protects workers from physical hazards. It’s not a question of passing a new law but enforcing the OSH Act.  (Last year, OSHA adopted a workplace anti-bully policy for its own workers.)
  • Workplace bullying is widely acknowledged to be a form of workplace violence.  Although it is primarily psychological in nature, it can lead to physical violence. It exists on the same spectrum of violence as domestic violence and elder or child abuse, all of which are addressed on a federal and state level.  One of the core functions of society is to protect its vulnerable citizens from violence. The HWB provides a private right of action.  This means that its enforcement mechanism is the embattled target, who after months or decades of bullying may lack the emotional, physical, and financial resources to hire an attorney and to embark on lengthy litigation with an uncertain outcome.  What happens if a target cannot or will not act? The bully moves on to his or her next target.
  • A workplace bully is not always an individual. Employers  use “strategic harassment” to get rid of workers who demand their rights and to cheat workers out of their legal rights – such as unemployment compensation, worker’s compensation, and/or fair pay and benefits.  A target suing a single employer cannot solve this problem.

 Other arguments advanced by Namie lack persuasiveness.

An enforcement action by a federal agency would be covered by the press, just like a private lawsuit.

And, yes, the  monetary penalty for state and federal OSH Act violations is insufficient but this can and should be addressed.   OSHA citations also trigger other penalties (including possible criminal sanctions) and an expensive investigation and hearing process.  Employers work diligently to avoid OSHA citations.

Namie and Yamada are concerned about the risk of burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But wouldn’t this argument apply equally to any other lawsuit involving a complaint of a hostile work environment, including sexual harassment or race discrimination lawsuits? Where is the evidence to suggest that frivolous lawsuits will be a particular problem with respect to workplace bullying? And why should this be a focus of concern for anti-bully advocates? Isn’t this what the U.S. Chamber of Commerce does?

Vermont’s bill notes that the Vermont office of attorney general’s civil rights unit reports that of the 1,200 to 1,300 requests for assistance it receives each year, a substantial number involve allegations of severe workplace bullying that cannot be addressed by current state or federal law or common law tort claims.

The United States lags behind many other industrialized countries in addressing workplace bullying.  That is shameful.  We owe a debt to Namie and Yamada for significantly helping to raise public awareness about the problem of workplace bullying, and for their extensive work on the issue. However, a solution is long overdue.  It is time to consider other options to protect the one in four American workers who suffer with this insidious health and safety problem.