My 2017 written testimony in support of the MA Healthy Workplace Bill

As some readers know, I am the author of the template version of the Healthy Workplace Bill (HWB), model workplace anti-bullying legislation that provides a civil claim for damages for bullied workers who can show they have been subjected to an abusive work environment and suffered physical and/or psychological harm as a result. The bill also includes liability-reducing incentives for employers who act preventively and responsively toward workplace bullying, mobbing, and abuse.

During the past eight years, we have been steadily building support within the Massachusetts legislature to enact the Healthy Workplace Bill, which has been filed in the current 2017-18 session as Senate No. 1013. Along with other advocates and supporters, I have filed written testimony in support of the HWB. Here is a slightly edited version of what I submitted in March:

***

Written Testimony in Support of Senate No. 1013,

“An Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status”

 

(a/k/a “Healthy Workplace Bill”)

 

David C. Yamada

Professor of Law, Suffolk University Law School

Author, Healthy Workplace Bill 

Dear Members of the General Court:

As the author of the original language contained in Senate No. 1013, workplace anti-bullying legislation informally known as the Healthy Workplace Bill, I respectfully submit this testimony to summarize what we know about workplace bullying, the need for legal reform, and key features of the legislation. This is our fourth full session in bringing this bill to the Legislature, and we strongly believe that it should become law.

Workplace Bullying is a Form of Targeted, Interpersonal Abuse

Workplace bullying is the intentional, repeated, health-harming mistreatment of one employee by one or more employees, by verbal and non-verbal means. Individual bullying behaviors come in overt and covert varieties, such as

  • false accusations of mistakes and errors;
  • yelling, shouting, and screaming;
  • exclusion, ostracism and the “silent treatment”;
  • withholding resources and information necessary to the job;
  • behind-the-back sabotage and defamation;
  • use of put-downs, insults, and excessively harsh criticism;
  • hostile glares and other intimidating non-verbal behaviors;
  • unreasonably heavy work demands designed to ensure failure.

Workplace bullying is not:

  • everyday disagreements and “dust ups” in the office;
  • someone having a bad day and losing his/her temper;
  • reasonable instructions, directives, and employee reviews.

In the United States, workplace bullying is common, often top-down, and typically does not end well for those targeted. A 2014 national public opinion survey sponsored by the Workplace Bullying Institute and conducted by Zogby pollsters found that:

  • 7% of respondents are currently experiencing workplace bullying, and another 20% of respondents previously have experienced workplace bullying, using a definition that tracks the language of the Healthy Workplace Bill.
  • 56% of bullying is committed by supervisors; 33% by co-workers; 11% by subordinates.
  • The most common “resolution” is that the target leaves the job: Quit or forced out (48%); terminated (13%); transferred (13%).

Human and Organizational Costs

Workplace bullying can inflict health-impairing physical and psychological harm on targeted employees, including:

  • stress disorders of all types
  • clinical depression
  • high blood pressure
  • cardiovascular disease
  • impaired immune systems
  • suicidal ideation
  • symptoms consistent with Post Traumatic Stress Disorder
  • severe residual effects on family and personal relationships
  • life-altering decisions about whether to stay in or leave a job.

Workplace bullying is very costly to employers. Organizations that play host to workplace bullying may suffer a variety of negative effects, including:

  • decline in productivity
  • reduction in morale
  • fear and mistrust permeating the workplace
  • greater attrition and “presenteeism” (i.e., workers going through the motions)
  • higher health insurance and benefit costs
  • elevated risks of workplace violence

The Need for Legal Reform

Current Law Does Not Protect Bullying Targets or Encourage Employer Prevention

  • Most instances of severe workplace bullying, especially those unrelated to protected class status (sex, race, disability, etc.) and whistleblower retaliation fall between the cracks of existing employment law.
  • Targets of severe workplace bullying are repeatedly told by plaintiffs’ attorneys that they have no legal recourse.
  • In the 2014 Workplace Bullying Institute national survey, 63% of respondents “strongly support” and 30% of respondents “somewhat support” workplace bullying laws.

Main Features of Senate No. 1013

  • Provides workers with a legal claim for severe bullying behavior, but with a high threshold: They must establish that the behavior was intentionally abusive and caused tangible physical and/or psychological harm.
  • Imposes liability on both individual aggressors and employers, but allows employers to minimize liability by preventing and responding to bullying situations.
  • Includes provisions that discourage weak or frivolous claims.
  • Claims brought in court; no agency involvement.

Debunking Myths about the Healthy Workplace Bill

  1. “Existing harassment law is sufficient to protect bullying targets.” — This is untrue. Existing harassment law protects only those individuals who can prove that the harassment is due to their protected class membership, such as sex, race, or age.
  2. “Existing tort (personal injury) and workers’ compensation laws are sufficient to protect and compensate bullying targets.” — This is untrue. In Massachusetts, the Supreme Judicial Court has held that under exclusivity provision of the state’s workers’ compensation law, workers may not sue their employers for intentional infliction of emotional distress (IIED) and many other tort actions. Furthermore, workers’ compensation benefits are very difficult to recover for so-called “mental-mental” injuries, i.e., claims for psychological impairment based upon psychological mistreatment or harassment at work.
  3. “The HWB will open floodgates of litigation.” — Of course there will be lawsuits under the HWB; it would not be doing its job if workers did not bring claims under it. However, after an initial surge of litigation, the number of claims will moderate considerably once lawyers and the courts recognize the fairly high threshold for recovery. In fact, the HWB has been criticized from sectors of the left as setting too high a standard for recovery. Furthermore, Under the HWB, an employer may avoid liability by showing that it exercised reasonable care to prevent and correct promptly any bullying behaviors and that the employee unreasonably failed to take advantage of these remedial measures. This is practically identical to the liability-reducing incentives contained in current federal law covering sexual harassment.
  4. “The language of the Healthy Workplace Bill is too vague.” — Not if you consider the bill in its entirety. The HWB draws its definition of an abusive work environment from the U.S. Supreme Court’s definition of a hostile work environment for sexual harassment.
  5. “The HWB takes away traditional management rights.” — This is untrue. The HWB takes away only the current right to treat someone abusively. It preserves management rights by providing an affirmative defense where the complaint is based on upon (1) an adverse employment action (such as a termination) reasonably made for poor performance, misconduct, or economic necessity; or (2) a reasonable performance evaluation; and (3) where the complaint is based on the employer’s reasonable investigation about potentially illegal or unethical activity.

An Emerging Law Reform Movement on Behalf of Human Dignity at Work

  • Healthy Workplace Bill (HWB) and related bills in 30 states — Since 2003, the Healthy Workplace Bill and related workplace bullying legislation have been introduced in 30 states.
  • Massachusetts – In the 2011-12 and 2015-16 sessions, the HWB advanced to Third Reading in the House; in the 2013-14 session, the HWB advanced to Second Reading.
  • Illinois — In March 2010, a version of the HWB covering public employees was approved by the Illinois State Senate by a 35-17 vote.
  • New York — In May 2010, the New York State Senate passed the HWB by a 45-16 vote that included strong bipartisan support.
  • California – In 2014, California enacted a law requiring larger employers to engage in supervisor training and education concerning workplace bullying.
  • Tennessee – In 2014, Tennessee enacted a law directing a state commission to develop a model workplace bullying policy for public employers.
  • Other nations — Australia, Canada, Great Britain, Ireland, and Sweden are among the growing number of nations that already have enacted laws and regulations covering workplace bullying.

Conclusion

If I can be of any assistance toward understanding the phenomenon of workplace bullying and the underlying legal and policy issues, as well as specific provisions contained in the Healthy Workplace Bill, please contact me.

Ellen Cobb’s “Workplace Bullying and Harassment”: A global legal source guide

For those seeking a handy compilation and summary of laws relating to workplace bullying, mobbing, and harassment around the world, Ellen Pinkos Cobb’s Workplace Bullying and Harassment: New Developments in International Law (Routledge, 2017) may be your go-to source. The following is drawn from the book’s online description:

Workplace Bullying and Harassment: New Developments in International Law provides a comprehensive tour around the globe, summarizing relevant legislation and key developments in workplace bullying, harassment, sexual harassment, discrimination, violence, and stress in over 50 countries in Europe, the Asia Pacific region, the Americas region, and the Middle East and Africa.

. . . This book brings together need-to-know information on global workplace bullying and harassment in one place, the first publication of its kind to do so. It will aid those in the fields of labor and employment, human resources management, occupational and industrial health psychology, health and safety, and workplace regulatory compliance stay abreast of laws and developments that these practitioners must be aware of, whether operating nationally or globally. Academics will also benefit. Links to laws and references are provided, enabling further research.

Ellen is a Massachusetts attorney who has been steadily researching laws related to bullying at work, and I’ve had the pleasure of knowing her for many years. She first published this guide independently. After producing several self-published versions, she then secured a contract with a major publisher. I’m delighted that her very useful and comprehensive resource is now more broadly available, and at a relatively affordable price for a book designed for practitioners and scholars.

“Jerks at work” vs. workplace soul stalkers

(Drawing copyright Aaron Maeda)

Earlier this fall, the Washington Post‘s Jena McGregor wrote a snappy piece titled “A field guide to jerks at work,” where she identified and commented upon five types of individuals who fit the description:

  • “The lone ‘bosshole'”
  • “The powerful bully”
  • “The clueless jerk”
  • “The petty tyrant”
  • “The overbearing client”

I’m sure that many who are familiar with bullying, mobbing, and incivility at work can recognize such characters from real life. I’ve used the term “jerks at work” myself, on many occasions. In fact, way back in 1998, invoking that phrase resulted in my first-ever quote on workplace bullying in a national publication (USA Today).

However, I now grasp that “jerks at work,” along with “bosshole,” “tyrant,” and other terms, can underplay the nature and impacts of the most virulent strains of workplace bullying, mobbing, and harassment. These targeted, malicious behaviors are frequently perpetrated by individuals who demonstrate traits of severe narcissism, sociopathy, or psychopathy, enabled by organizations that either actively validate such behaviors or conveniently look the other way when they occur.

Instead of “jerks,” I find myself sometimes associating the term “soul stalkers” with these types of workplace aggressors, borrowing from the title of Dr. Marie-France Hirogoyen’s Stalking the Soul: Emotional Abuse and the Erosion of Identity (English ed., 2004). Dr. Hirogoyen, a French psychiatrist and therapist, provides an important analysis of emotional abuse in private lives and in the workplace.

I know that I’m beating a familiar drum here, but I again want to urge that we not confuse incivility and being a jerk with abuse and being an abuser. Our souls can usually survive dysfunctional bossholes and the like, however unpleasant and stressful they may be. But bonafide abusers may exact a much greater toll, and we need to figure out how to neutralize their toxic powers in the workplace and elsewhere.

A few revised posts for your consideration

Dear readers, during the past year I’ve revised, tweaked, and updated several popular earlier posts to this blog. I hope you’ll find them interesting and/or useful!

The social responsibilities of intellectuals at a time of extraordinary human need (original: July 2013 ; revised: January 2017) — “Intellectuals should help to lead, not merely react and respond. In both of my talks at this conference, I suggested that scholars should be “responsibly bold” about investigating reality and fashioning solutions to our problems. I also urged us to be “restlessly patient,” understanding that positive change can take time, while continually seeking opportunities to effect that change sooner than later.”

Gaslighting as a workplace bullying tactic (original: December 2012; revised: March 2017) — “Gaslighting often is discussed in the context of spousal and family relationships. It makes sense, then, that we see so many parallels between domestic abuse and workplace bullying. Perhaps the leap from Ingrid Bergman & Charles Boyer to The Office isn’t much of one after all.”

When the bullying comes from a board member (original: August 2011; revised: November 2017) — “‘Board bullying,’ as I call it, is one of the largely unexplored aspects of workplace bullying. I do not know how frequent it is, and I have not yet found any research literature on the topic. . . . And yet I know it is real. I suspect it is more prevalent in the non-profit sector than in the business sector, but that impression may be unduly influenced by the fact that I’ve spent much of my career and volunteer service in non-profit organizations.”

What is academic tenure? (original: August 2011; revised: December 2016) — “Tenure is under attack. Some claim that tenured professors are too coddled and privileged. Others say that in the face of rising tuition and a difficult economy, tenured and tenure-track professors are too expensive. In some cases, political and university leaders are going after tenure to diminish academic freedom in higher education.”

When “heart, will, and mind are on the same page” (original: July 2010; revised: July 2017) — “For many years, University of Chicago psychologist Mihaly Csikszentmihalyi has been urging us to seek those elusive states of flow in our lives, those experiences when ‘heart, will, and mind are on the same page.’  They may involve ‘singing in a choir, programming a computer, dancing, playing bridge, [or] reading a good book.’  In these moments, ‘what we feel, what we wish, and what we think are in harmony.'”

Personal crises and work life

Writing for the Harvard Business Review, Amy Gallo provides a very good advice piece on how to think through options when a personal crisis is affecting your work life. The crisis may be a family member with an illness, your own health situation, a divorce, or any other significant external stressor. Gallo’s full article goes into helpful detail, explaining key advice and discussing several case examples. She summarizes her major points this way:

Do:

  • Determine what type of support you need — at home and at work.
  • Tell your colleagues what’s happening so that they feel compassion for your situation.
  • Make clear, specific requests of your coworkers and boss so that they know how they can help you.

Don’t:

  • Feel you have to tell everyone directly — it’s OK to ask close colleagues to explain to others what’s going on.
  • Share every detail of your situation; tell coworkers only the details that are pertinent to them.
  • Assume that it will be painful to continue working during this time — sometimes going to the office can be a comfort.

Employee benefits

I’m going to put on my employment lawyer hat and underscore the importance of understanding your benefit options.

First, know your employee benefits. They may include, among other things, vacation and sick days, personal leave, and perhaps even pay advances or long-term disability coverage.

Second, if the situation involves your own health, you may have a right to a reasonable accommodation under the Americans with Disabilities Act and/or an equivalent state law.

Third, if your health or that of an immediate family member is involved, consider the option of unpaid leave under the Family and Medical Leave Act. Some employers and a few jurisdictions may offer paid medical leave.

Words of caution

Finally, if you happen to be working for a not-so-great employer, be careful about disclosures and requests involving personal crises — notwithstanding Amy Gallo’s advice. Unfortunately, there are all too many stories of unscrupulous employers using an employee’s personal crisis as a way of pushing them out of the workplace. Maybe they don’t want to provide medical leave or a reasonable accommodation. Maybe they’re looking for the right excuse to get rid of an otherwise productive worker. As many of those who have experienced workplace bullying can attest, some abusive managers are very, very good at sniffing out vulnerability.

If you think your situation may be putting your job at risk, that is the time to seek the advice of a lawyer who specializes in representing employees. For more on securing an employment attorney, see my article posted earlier this year, “Bad work situations: When do you need an employment lawyer?

On building midlife resilience

For many people who have found this blog because of very bad work experiences or career setbacks, the topic of resilience often enters into discussions of recovery and healing. Of course, there’s no shortage of books and long articles about building resilience, and they are certainly worth checking out. But sometimes less is more. Toward that end, I strongly recommend an excellent short piece that appeared over the summer, “How to Build Resilience in Midlife,” by New York Times health columnist Tara Parker-Pope.

Drawing upon the work of resilience experts, she compactly pulls together seven main points of advice:

  • “Practice Optimism”
  • “Rewrite Your Story”
  • “Don’t Personalize It”
  • “Remember Your Comebacks”
  • “Support Others”
  • “Take Stress Breaks”
  • “Go Out of Your Comfort Zone”

If this topic is important to you, then I strongly recommend reading the full article. If you give it 10 minutes of your time, then there’s a good chance you’ll want to save it or print it out. It invites deeper contemplation. Especially for those of us who have been around the block a few times, it’s a great starting place for understanding the keys to building resilience later in life.

For more

For those who would like to dive deeper into this topic, these sources may be helpful:

Also, do a search on “building resilience after trauma.” You’ll find a wealth of informational resources.

When workplace predators silence and intimidate their targets

The ongoing revelations concerning sexual harassment and abuse allegations lodged against powerful Hollywood producer Harvey Weinstein took a major turn this week via some excellent investigative reporting by the New Yorker‘s Ronan Farrow. Here’s the lede:

In the fall of 2016, Harvey Weinstein set out to suppress allegations that he had sexually harassed or assaulted numerous women. He began to hire private security agencies to collect information on the women and the journalists trying to expose the allegations. According to dozens of pages of documents, and seven people directly involved in the effort, the firms that Weinstein hired included Kroll, which is one of the world’s largest corporate-intelligence companies, and Black Cube, an enterprise run largely by former officers of Mossad and other Israeli intelligence agencies.

The details are stunning. Here are just a few:

  • “Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her. One of the investigators pretended to be a women’s-rights advocate and secretly recorded at least four meetings with McGowan.”
  • “The explicit goal of the investigations, laid out in one contract with Black Cube, signed in July, was to stop the publication of the abuse allegations against Weinstein that eventually emerged in the New York Times and The New Yorker. Over the course of a year, Weinstein had the agencies “target,” or collect information on, dozens of individuals, and compile psychological profiles that sometimes focussed on their personal or sexual histories.”
  • “In some cases, the investigative effort was run through Weinstein’s lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court.”

The full article is lengthy (as a first-rate investigative piece usually will be), but it’s well worth reading to grasp the extent of these efforts to investigate and intimidate victims and reporters.

NBC’s Megyn Kelly, Kate Snow, and Cynthia McFadden on the fallout

Some of the fallout from these revelations is discussed in this 11-minute segment featuring Megyn Kelly’s interview with NBC correspondents Kate Snow and Cynthia McFadden. It is also worth your time. Among other things, Kelly takes aim at how women are often ridiculed and dismissed when they make claims of abusive behavior by powerful men, often to the point of being called crazy and paranoid.

Moral monsters in suits

As Farrow’s New Yorker piece explains, prominent attorney David Boies was a key point person in running Weinstein’s black ops against these women and reporters. It brings to mind a blog post I wrote in 2011 about bad employers and their lawyers:

I have no academic study to verify this, but I have concluded that many bad employers have a sixth sense for retaining thuggish employment lawyers who serve as their willing executioners of workers who file complaints about working conditions, blow the whistle on ethical and legal lapses, or attempt to organize a union.

Indeed, to keep their misdeeds from going public and to preclude being held accountable for their actions, folks like Weinstein often need lawyers who are willing to help them. I once again appeal to Hannah Arendt to help us understand this dynamic:

Philosopher Hannah Arendt invoked the phrase “banality of evil” to describe how Adolf Eichmann served as one of Hitler’s architects of the Holocaust. Since then, the phrase has come to represent — in more generic terms — how ordinary people become easily invested in the values of a morally bankrupt status quo and participate in terrible behaviors that seemingly are unthinkable in civilized society. These insights teach us a lot about how bureaucratic enablers of abusive bosses can help to facilitate the destruction of a bullying target. These professional handmaidens (usually HR folks and employment lawyers) are more than simple bystanders; rather, they are complicit in the abuse.

Attorney Boies had also been retained by the New York Times on various legal matters. Today, after learning that Boies had targeted their own reporters as part of this cloak and dagger campaign, the Times severed its ties with his law firm, stating:

“We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters….Such an operation is reprehensible.”

Been there, seen that

This aspect of the Weinstein saga may seem like an extreme anomaly. But for those of us who are closely familiar with other orchestrated attempts to further bully, silence, dismiss, marginalize, and disempower targets of interpersonal abuse, this is more validating than shocking. Unfortunately, money and influence can muster a lot of power to engage in further abuses, and this is simply a (now) very public manifestation of what continues to occur in so many other settings.

%d bloggers like this: