Employers enjoy wide leeway in determining what to include in their in-house employment policies. They can cover only those matters required by law, or they may go beyond legal mandates. This representative scenario, drawn from a law review article I’m writing about therapeutic jurisprudence and employment law, raises the question of whether a workplace bullying policy should be included in an employee handbook:
Your law firm represents an accounting firm. Sandra Brown, the firm’s human resources director, has reported numerous instances of workplace bullying. She has read about employers that include workplace bullying in their employee handbooks and has asked the firm’s managing partner, Bob Bolton, for his approval to do the same.
Bolton has asked you for your assessment about whether it would be advisable to include an anti-bullying policy in the employee handbook. He expresses his skepticism about addressing bullying, saying that “this is about personality conflicts and thin-skinned workers, and some people just have to toughen up.”
You are aware that in your state there is no statutory or common law remedy that directly addresses workplace bullying, and your legal assessment is that the firm faces a low risk of liability for these situations. In addition, your state supreme court has held that provisions in employee handbooks may be contractually enforceable, so including workplace bullying in the firm’s handbook may confer legal rights to employees who face bullying behaviors.
Standard-brand legal advice to Bolton would inform him of the low liability exposure for bullying situations and the risks of creating contractual rights by including a bullying policy in the employee handbook. If Bolton asks whether he is legally required to include bullying in the employee handbook, the correct answer as of this writing would be “no.” Given Bolton’s stated opinion on this topic, it is likely that he will instruct HR director Brown not to add such a policy.
A more holistic approach to advising Bolton might take a different tack. Certainly his firm’s lawyer is ethically obliged to inform him of the low liability risk, the potential contractual obligations of adding bullying to the employee handbook, and to respond truthfully to Bolton’s inquiry on whether such a policy is required by law. However, the firm’s lawyer also could inform Bolton of some of the potential benefits of including a workplace bullying policy in the employee handbook and covering bullying in management training sessions.
This briefing could include a description of the costs of workplace bullying to an organization, information about growing concerns over bullying behaviors in office settings, and an explanation of how bullying directed at employees takes a heavy toll on morale and productivity. If the lawyer is particularly knowledgeable about workplace bullying, she can borrow from the growing body of literature about bullying in the healthcare professions to explain to her client that abusive work environments have been shown to increase the risk of patient errors, pointing out that similar mistakes in the accounting profession can be costly for client and accountant alike.
In sum, it may be that inclusion of a workplace bullying policy and educating employees about bullying will lead to a healthier organizational climate, not to mention reduce liability exposure. This is one way in which thoughtful client counseling can lead to a classic “win-win” situation for employers and employees alike.
For a pre-publication draft of “Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace” (forthcoming, Florida Coastal Law Review)
For something of a parallel post, “Workers, their lawyers, and workplace bullying”