In a New York Daily News op-ed piece last week, E.J. McMahon and James Copland of the Manhattan Institute attacked the Healthy Workplace Bill (HWB) as a “job killer” that would end at-will employment — i.e., the right of employers to terminate workers for any reason or no reason at all — in New York State. They claimed that protecting people against abusive treatment at work would place an unfair burden on employers.
A New Jersey state of mind?
The “job killer” tag is a favorite of those who oppose laws to protect workers, suggesting that safeguards against mistreatment and harm translate into costs that “kill” jobs and chase them across state lines. In the case of New York, opponents of the HWB are trying to scare people into believing that enactment of the bill will cause a rush of companies to pick up and move to New Jersey — a state that has some of the toughest worker protections in the nation!
Fair and balanced
Even apart from the reality that New Jersey is hardly an employer’s legal paradise, there are many reasons why the HWB is not the “job killer” Mssrs. McMahon and Copland claim it to be:
1. High standard for proving a case — The HWB requires an individual to prove that the bullying behavior was malicious and harmful to physical and/or mental health. By legal standards, that’s a high threshold.
2. Damage cap for lesser claims — In cases where the bullying did not include a negative employment decision such as a demotion or termination, emotional distress damages are limited to $25,000 and no punitive damages are allowed. In other words, the HWB blocks runaway jury verdicts for comparatively modest claims.
3. Preserves management prerogatives — The HWB expressly maintains traditional management prerogatives to evaluate employees. It does not do away with the rule of at-will employment.
4. Incentives — The HWB imposes liability on employers, but it provides them with incentives to reduce or avoid liability by taking adequate preventive and responsive measures toward bullying.
5. Notice – The New York version of the HWB requires employees to put employers on notice of bullying behavior as a pre-condition for filing a lawsuit.
An equal opportunity people saver, not a job killer
Most targets of severe workplace bullying fall between the cracks of existing labor protections. The HWB is designed to fill this huge gap in the law. It provides bullied workers who can prove that they were subjected to malicious, health-harming abuse with damages and relief. These protections are truly “equal opportunity,” as they extend to everyone, regardless of their demographic characteristics.
The Healthy Workplace Bill promotes human dignity and productive organizations by recognizing that we all work better when we are not subjected to disabling, destructive abuse at work. It’s not a job killer, it’s a people saver.
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[...] talent drain. Professor David Yamada, author of the bill, gives a more comprehensive argument that our bill is “an equal opportunity job saver.” The authors of the Daily News article argue that everyone fired will have grounds to sue. Read the [...]
Seems the bill only requires that management become minimally civilized. If that causes certain businesses to fail, that’s good. In a real capitalist economic system, another business will be born to provide the same service/product but with more competent leadership. I’m all for that.
Larry, that’s it! The bill sets a high legal threshold for recovery of damages. It’s not a “slam dunk” for the employee/target by any stretch. If a business loses repeated cases under this statute to the point where its financial viability is threatened, maybe it should stand aside for a better competitor or replacement. David
Outstanding explanation of the bill! I’m going to share this link on my blog so that others know what HWB is all about!
Great job, David!
Drew, thank you, much appreciated. David
[...] Why the Healthy Workplace Bill is not a “job killer” « Minding the Workplace. Categories: Re-Blog Comments (0) Trackbacks (0) Leave a comment Trackback [...]
[...] talent drain. Professor David Yamada, author of the bill, gives a more comprehensive argument that our bill is “an equal opportunity job saver.” The authors of the Daily News article argue that everyone fired will have grounds to sue. Read the [...]
[...] claim that the HWB is a “job-killer,” positing that if anything, the bill is an equal opportunity people saver. That said, there are at least two good signs emerging from this flurry of [...]
[...] The rest of the article indicates that many management-side lawyers who oppose the Healthy Workplace Bill do not understand the relatively high thresholds imposed for winning a claim, as well as the provisions built into the statute that discourage frivolous claims and provide legal incentives for employers to act preventively and responsively toward bullying at work. (For a lengthier explanation, see my earlier post, Why the Healthy Workplace Bill is not a “job killer”.) [...]
[...] It’a also possible that Ms. Pynchon is not familiar with the details of the Healthy Workplace Bill, which sets a very high threshold for recovery. In order to prevail, an employee has to establish that the behavior was both malicious and harmful to mental or physical health. The bill further includes numerous defenses and provisions to discourage frivolous and marginal claims. As I have written previously on this blog, it is both “HR-friendly” and anything but a “job killer.” [...]