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.

OSHA Adopts Workplace Anti-Bullying Policy

 

The Occupational Safety and Health Administration has 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 was released on May 23, 2011. The manual 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, despite overwhelming research that workplace bullying may cause severe damages to a target’s mental and physical health.

The stated purpose of the workplace bullying policy, 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.”

The manual defines “intimidating behavior” as:

“Threats or other conduct that in any way create a hostile environment, impair Agency operations, or frighten, alarm or inhibit others. Verbal intimidation may include making false statements that are malicious, disparaging, derogatory, disrespectful, abusive, or rude.”

 And, “workplace violence” is defined as:

“An action, whether verbal, written, or physical aggression, that is intended to control, cause, or is capable of causing injury to oneself or other, emotional harm, or damage to property.”.

 All OSHA employees are required to “treat all other employees, as well as customers, with dignity and respect. Management will provide a working environment as safe as possible by having preventative measures in place and by dealing immediately with threatening or potentially violent situations. No employee will engage in threats, violent outbursts, intimidations, bullying harassment, or other abusive or disruptive behaviors.”

The manual states that the Assistant Regional Administrator/Director for Administrative Programs or equivalent unit will:

1. Disseminate the workplace violence policies and procedures to all employees;

2. Provide annual training on this policy and U.S. Department of Labor workplace violence program for responsible OSHA Manager(s); and

3. Conduct an investigation and complete a Workplace Violence Incident Report for all incidents reported. The report will be submitted to the Regional Administrator within 24 hours of completion.

Congress created the OSHA  to ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. OSHA is part of the United States Department of Labor.

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).