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.

What would Martin Luther King say?

Change and Workpace Discrimination

  •  Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom. A man can’t ride you unless your back is bent.
  •  He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it.
  •  Human progress is neither automatic nor inevitable… Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.
  • I am not interested in power for power’s sake, but I’m interested in power that is moral, that is right and that is good.
  • Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.
  • The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.
  • When you are right you cannot be too radical …

The 1877 Master and Servant Rule Lives!

If you wonder why American workers need protection from workplace bullying, consider last week’s decision by a federal appeals court in Chicago regarding a 51-year-old plant  manager who was fired by Sun Chemical Corp. in 2009.

George Widmar, 51, was a plant manager for 16 years who was fired in 2009 by Sun Chemical, denied severance pay and publicly accused of  having “screwed up” the plant. Sun Chemical argued that plant managers must accept responsibility over all aspects of a plant – even those outside the manager’s control.  The U.S. Court of Appeals for the 7th Circuit in Chicago agreed.

The appeals court did not discount the possibility that everything Widmar claimed had happened to him did in fact happen. Among other things, Widmar said he was blamed for problems stemming from a flawed chemical formula and Sun’s decision to use cheap, faulty materials.  The court ruled in the case of Widmar v. Sun Chemical Corp, No. 13-2313 (November 19, 2014), that none of this mattered.

The court said the law is not concerned about employers or managers who are “unpleasant,” “unfair” or “too hard” on employees. The law is not concerned if an employer/manager has a “nefarious motive,” doesn’t like, or is “wrong” about an employee’s performance. Furthermore, the law doesn’t care if the company creates conditions that make it impossible for a worker to succeed.

All the law cares about, said the appeals court, is whether an employee can prove illegal discrimination.

Paradoxically, of course, it is impossible to prove illegal discrimination if the law doesn’t care that the employer had nefarious motives, was wrong about the employee’s performance and created conditions that made it impossible for the manager to succeed. What’s left? Is it fair to expect an employer to tell an employee outright that it is intent upon violating federal discrimination laws?  Sometimes all a worker can do is point to harassment and unfair policies and expect the law to care.

Many industrialized countries do care when employers engage in unfair and destructive employment practices. They have adopted workplace bullying laws and policies to protect workers.  The European Union in 2000 adopted The Charter of The Fundamental Rights of the European Union, which declares that “every worker has the right to working conditions which respect his or her health, safety and dignity.” Overwhelming research shows that workplace bullying has serious short-term and long-term impact upon the health of targets.  The European Framework Agreement on Harassment and Violence at Work in 2007 states that employers have a duty to protect workers from harassment and violence in the workplace.

America’s employment law is based upon an obscure policy concocted in 1877 by an Albany attorney and treatise writer, Horace Gray Wood. He created the “Master and Servant” rule that  provides when a hiring is indefinite, the burden of proof is on the servant to prove that an indefinite employment term was for one year.  Courts expanded Wood’s theory, which was based upon a scant four court decisions,  into the “employment at will” rule which reigns today and permits an employer to fire an employee without reasonable cause (except when the cause violates the law).  So Widmar legally could be fired without reasonable cause and his mistreatment ignored because the court declared his evidence was insufficient to show illegal discrimination.

Widmar was a senior employee with sufficient resources to hire and attorney and file a lawsuit and an appeal. One can only wonder how Sun Chemical treats lesser employees who are denied access to America’s archaic courts because they can’t afford hefty attorney fees and court costs or navigate a system that is profoundly intolerant of  self-represented litigants.

Why are Americans satisfied with working conditions that other countries find barbaric? Never mind Widmar. Why do the poorest and least powerful workers continually elect politicians who either ignore them once they get into office or actively fight against their interests to advance the goals of multi-national corporations?  And yet, the Master Servant rule lives.

Workplace Bully Targets Suffer Without Law

New Jersey – Kevin M. Costello,  a New Jersey attorney, said he turns away more than 2,000 people a year who are seeking his help to combat workplace bullying.

“These are people who have panic attacks.  Their hair is falling out.  They are throwing up blood … They ask, ‘Why can’t you help me?’ ‘Why isn’t there a law?” said Costello, who spoke at the first conference of the National Workplace Bullying Coalition at Rutgers School of Law earlier this month. “I can’t stand saying ‘no’ to that many people,” said Costello.

Costello is assisting New Jersey State Sen. Linda Greenstein,  assistant majority leader of the NJ Senate,  in crafting a proposed state law to address workplace bullying.

Sen. Greenstein said the bill will help targets who are under “extreme stress. What we’re looking for here is not your everyday not-so-pleasant workplace … We’re looking for very serious situations.”

Costello, who specializes in employment rights, said there are no viable options at present for victims of workplace bullying, especially those who do not fall within a protected class under state or federal anti-discrimination laws (i.e., race, sex, religion, color, national origin).

Critics of workplace bullying legislation often argue that such legislation will add to the cost of doing business in New Jersey, make the state  less competitive and  ultimately would harm the state’s economy.  Costello said the same concerns were raised in the past and were unfounded.

“Why should we do something about child labor? The economy would suffer if we didn’t hire children … Why should we pay women the same amount as men? They have husbands … What do you mean Occupational Safety and Health Act?  I want to make sure the economy doesn’t suffer,” he said. “At the end of the day, this is a bill whose time has come.”

More than 100 attorneys, union officials, policy makers and targets of workplace bullying attended the April 4 conference of the NWBC,  the first national organization formed to address the problem of workplace bullying.

Meanwhile, 27 percent of U.S. workers are either experiencing abusive conduct at work or did so in the past, and 21 percent have witnessed it, according to a 2014 national survey by the Workplace Bullying Institute.  The survey also found that almost three-quarters of employers have done nothing to curb workplace bullying.  An estimated  93 percent of  respondents in a national survey said they support enactment of legislation to protect employees from abusive conduct at work.

* Disclaimer:  I am a co-founder and member of the NWBC.