Another Defeat for Healthy Workplace Bill

TIME FOR A NEW APPROACH

The decade-long strategy of adopting state-by-state legislation to deal with workplace bullying in the United States has suffered yet another defeat.

The Maine House of Representatives recently voted 87-56 to sustain Maine Gov. Paul LePage’s veto of a bill aimed at bullying in the workplace that had been adopted by Maine’s legislature.

 The bill, which was supported by the Workplace Bullying Institute (WBI), directed the Maine Workers’ Compensation Board to study psychological and physical harm employees suffer due to abusive work environments. 

 In his veto message, the governor said the study was unnecessary because the Workers’ Compensation Board already provides benefits to employees who suffer physical and psychological injuries on the job.

 Maine was the 24th state to consider some version of the WBI’s proposed  Healthy Workplace Bill  but no state has yet to adopt it.

 This blog advocates a federal and national solution to the problem of workplace bullying, which affects one in every three or four workers in the United States. So far about 8,000 targets of workplace bullying have signed a petition demanding action from the Obama Administration.

 Ruth and Gary Namie, founders of the WBI, have led  a decade-long campaign to pass proposed legislation called The Healthy Workplace Bill.

 Drafted by Suffolk University Law Professor David Yamada, the bill was overhauled earlier this year after criticism by workplace anti-bully advocates that it offered far less protection to targets of workplace bullying than similar legislation in other countries.  

The Namies, who aggressively market consulting services and book sales on the WBI web site,  and Mr. Yamada, who formed an organization called The New Workplace Institute, have not cooperated with other workplace anti-bully advocates who formed a coalition last year (Protect US Workers) to  support a federal solution to workplace bullying.

America lags far behind Europe, Canada, Australia and many other industrialized countries in protecting workers from bullying, which is widely considered to be a health-harming form of workplace violence..

 

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.

Other Approaches to Workplace Bullying?

So far, efforts to combat bullying in the American workplace largely have centered on a campaign spurred by the Workplace Bully Institute to pass anti-bullying legislation on a state-by-state basis.  To date, the effort has yet to yield a single success (defined as a state that has adopted such legislation).

What would happen if workplace anti-bully advocates took a different approach?

One idea might be federal legislation to amend Title VII, the Civil Rights Act of 1964, to  permit any worker to sue if subjected to a hostile workplace environment.

Another idea is to approach the problem as an important public  health issue  –  which it is – and adopt health and safety regulations to protect employees on that basis. Finally, one might think local – push cities and towns to adopt legislation to protect employees from workplace abuse.

Advocates for anti-obesity measures took the local approach, with some initial success.  However, industry groups are now finding a way to halt local initiatives, using stealth tactics to erect statewide road blocks.

Public health advocates persuaded some progressive cities and counties around the nation to pass anti-obesity measures, such as requiring restaurants to list fat and calorie content on their menus or to prepare food without unhealthy trans-fats.  The New York Times reported June 30, 2011 that  industry groups are acting pro-actively to quash these anti-obesity efforts. and they are using stealth tactics.

The Times notes that Ohio’s 5,000-page state budget contained sweeping limitations on local government control over restaurants.  Florida  adopted similar limits, tucked into a bill that largely concerned amendments to state regulations on vacation rentals. Other states with limits include Alabama, Georgia, Tennessee, and Utah. Earlier this year, Arizona prohibited local governments from forbidding the marketing of fast food using “consumer incentives” like toys.

Not surprisingly, state restaurant groups are leading the charge for the preemptive state legislation.   State legislators who sponsored preemptive legislation in Florida and Alabama say they were contacted by their state’s restaurant associations, which expressed concern that California’s latest food rules would be adopted by their own local governments.

The Los Angeles City Council has banned fast food restaurants in South Los Angeles, where rates of poverty and obesity are high. In April, the Santa Clara County supervisors adopted a policy that forbids fast food restaurants from selling meals with toys, like those connected with movie promotions.

The Ohio law gives the state’s director of agriculture “sole and exclusive” authority to regulate the use of consumer incentives in food marketing and prohibits localities from requiring menu labeling and using incentives and laws to address “food-based health disparities.”  The statute may nullify a law passed by the Cleveland council in April that banned restaurants and food makers from using “industrially produced” trans fats in products.

One of the fundamental concepts of the U.S. Constitution involves the importance of state’s rights – the idea  is that real change and progress comes from experimentation among the states and not through a federal bureaucracy. It doesn’t take a PhD. to see that this concept also is relevant to states, which tend to  adopt progressive statewide legislation in response to local initiatives.   I’d rather be guided by the framers of our U.S. Constitution than self-interested industry groups. Wouldn’t you?

The state-by-state campaign to adopt workplace anti-bully legislation began in 2003 in California and has encountered steady opposition from business groups, who apparently are largely ignorant about the enormous toll bullying exacts on the employer’s bottom line.   This, despite the fact that the Workplace Bullying Institute is pushing a proposed Healthy Workplace Bill that is considerably weaker than legislation adopted in other industrialized countries around the world. American workers deserve strong protection from bullying in the workplace, which causes health problems and destroys lives and families.

* The new state laws limiting public health measures will have no effect on a federal law that requires menu labeling by chains with 20 or more restaurants by 2013. But more than half of the nation’s restaurants will not be required to meet the federal rules for listing calories and fat content.

NBC Should Fire Donald Trump!

Shows Lousy Leadership Skills

Donald Trump,  real estate mogul and boss of  The Celebrity Apprentice,  hit a new low this week when he fired a target of workplace bullying and retained the bully.

Trump retained Richard Hatch after Hatch, in his capacity of Project Leader, actually physically pushed away  his “employee,” David Cassidy, when Cassidy tried to make suggestions.

Hatch, who won the first Survivor reality TV show, is physically considerably larger than Cassidy, who is a performer and former teen idol. Hatch treated Cassidy like a pesky fly, physically pushing him away a couple of times.  At one point, Cassidy confronted Hatch, complaining that Hatch had physically touched Cassidy twice and telling him to stop.

Notably, Hatch did not physically touch any other team member.

In addition to physical bullying, Hatch repeatedly referred to Cassidy in demeaning terms, at one point calling  Cassidy delicate and one of the “little people.”

Meanwhile, in a behavior that is typical for a workplace bully, Hatch at first denied the abuse, which was caught on film, and then minimized the abuse.

Unfortunately, the scenario is all too typical.

In a 2008  poll by the Workplace Bullying Institute, 53 percent of targets of workplace bullying said they reported the abuse to their employer, and their employer substantially did nothing; 71 percent said the employer retaliated against them!

Cassidy and other team members reported the bullying to Donald Trump  but, sadly, Trump’s response was essentially to criticize Cassidy for failing to be more assertive.  Trump said  his gut  (which he said is always right)  told him to fire Cassidy and not Hatch. However, cynics might infer that Trump’s gut told him the villainous Hatch is better for ratings.

This is an appalling example of poor leadership for any boss but especially one who is making noises about running for the Republican nomination for U.S. President.  (I’m referring to Trump)

In addition to Cassidy, Trump  failed Cassidy’s team-mates. Witnesses of bullying often fear that they may be next, and experience guilt that they didn’t intervene on behalf of the bullied.  Several of Cassidy’s teammates watched in silence while Hatch physically dominated Cassidy.

Hatch, by the way, spent three years in prison for failing to pay taxes on his winnings from Survivor and subsequent earnings. (A federal judge ordered Hatch back to prison on 3/11/11 for nine months because he still hasn’t settled up with the IRS.) Fellow Survivor cast member Sue Hawk threatened to file a lawsuit after Hatch, while nude, brushed up against her during a Survivor challenge.

Hatch calls himself a corporate trainer.

God help us!

By the way, for all you employers out there who think the workplace should be a battleground, here’s an overview and definition of the tort of battery.

Battery occurs when the defendant’s acts intentionally cause harmful or offensive contact with the victim’s person. [See Restatement §§ 13, 16, 18.] While battery requires intent, the prevailing tort definition does not require an intent to harm. It is only necessary that the defendant intend to cause either harmful or offensive contact.  [From: J. Diamond, et. al, Understanding Torts (Lexis-Nexis, 2010)].

– PGB

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