Employers, their lawyers, and workplace bullying policies

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”

8 responses

  1. I represented a teacher last night in a grievance hearing with the school committee. The teacher had received a letter of reprimand for his “argumentative and combative” attitude in a meeting with several other staff and a parent.

    The irony is that the administrator issuing the LoR was the one everyone else at the meeting agreed was bullying, combative, angry, peremptory and nasty.

    No matter how good the contract or the policy or the guidelines, if an administrator is bad, s/he’s still in control of the process.

    BTW, the grievance was denied.

    • Nancy, thanks for your comment. I generally agree with your point about bad administrators.

      Having cut my teeth as a labor activist and public interest lawyer, it took me a long time to accept the reality that — our cries of “power to the people” notwithstanding — workplaces are defined from the top. And given the power dynamics + the state of the law, a bad administrator (or a good one, for that matter) has incredible power over substance and process.

      I do think that management-side lawyers have the (largely untapped) potential to do some bottom-line consciousness-raising with their clients, educating them that treating workers poorly — even if you can get away with it — is likely to lead to lower morale and less productivity. Heh, I’m less optimistic that such lessons will seep through in a public school setting, but that’s a longer conversation…

      David

  2. The struggle of bully bosses in the workplace seems to be a loosing battle for those in the trenches today; those who are dreading their work day facing humiliation, intimidation, and other psychological abusive techniques. Workers who have bully bosses need to feel empowered, need to have hope of some relief in sight. But, so far there is none in sight.

    That being the case the other issues that can be fought and at least give bullied workers a possibility of relief is forcing the organizations to accept responsibility for the damages the worker suffers at the hand of the bully boss. If the bully boss causes psychological pain and suffering that results in panic attacks, PTSD, and other physical and or psychological injuries then the worker should be justly compensated. The damages here are no different than physical violence perpetrated upon an employee. In some cases the psychological damage is far worse; long after physical wounds have healed the psychological damages go on and on and on . . .

    • I agree that right now, it’s still very much an uphill battle for workers who face bullying bosses and even bullying co-workers. In the absence of stronger, more direct legal protections, I fear that employers have very little direct incentive to accept responsibility for abusive bosses. If they understood what the bullying does to morale and productivity, they might take it more seriously. Hence the potential educative role of the management-side lawyer.

  3. The Bolton-Brown scenario described would culminate in creating a policy and placing it in the employee handbook. The risks were discussed. However, there are 3 problems. First, hiding a policy in a handbook without the hoopla and attention training in sexual harassment prevention requires makes it likely that the policy will not be a living document used to guide management practices. Second, if the policy is written by Bolton with only HR involved, it will not be perceived as fair or credible to those below the executive team. And if a union operates there, Brown will have her hands full explaining the exclusion of the union from the policy’s creation. The third problem is that a policy alone is insufficient to stop bullying. There must be an explicit enforcement strategy (either with or without informal resolution steps preceding formal complaints) that applies to ALL employees, including Bolton. American employers stumble on this step. They have no intention of allowing executives to be held accountable for their decisions — fiduciary or interpersonal. In reality, Bolton would kill the policy initiative as soon as Brown (HR) suggested that the prohibition against bullying be extended to, and above, the supervisory ranks.

    • I agree wholeheartedly that a policy without meaningful enforcement is worthless, or less than worthless. The history of discrimination and sexual harassment claims is full of situations where employers ignored their own internal policies and employee handbooks. But getting the policy in there in the first place is a big initial step. And, if the employer ignores it, that does raise the possibility of a lawsuit against the employer based on a breach of contract, at least in states that have recognized the potential contractual liability for assurances in handbooks.

  4. When advising clients on handbook creation or review, I encourage them to include, as a minimum, a no-gossip policy. In my opinion, this goes a long way to set the basic premise that gossip is a toxic and infectious behavior that won’t be tolerated and gives employees specific ways to handle a co-worker who engages in such behavior.

    Although it may not be as comprehensive as an anti-bullying policy, a no-gossip policy can have real impact in improving the workplace for the employer and employees.

    Molly DiBianca

    • Molly, thanks for sharing your practice of recommending inclusion of a no-gossip policy in employee handbooks. It’s an intriguing suggestion. Malicious gossip is certainly a common bullying-type behavior, and it can be the seedling of rumor campaigns and mobbing attacks. My biggest concern is how gossip is defined. After all, what management considers gossip could be, from a rank-and-file viewpoint, simply a healthy exchange of information among employees. It could even be protected speech under the National Labor Relations Act or relate to workers trying to protect themselves from unsafe working conditions, discrimination and harassment, and other bad situations. Does your recommended policy make this clear?

      Because of my concerns about defining gossip, I’d rather see a no defamation policy that is equally applied to management and staff. This sets a brighter line on what crosses the line, and puts everyone on notice that malicious lies and disinformation — in other words, the truly destructive stuff — will not be tolerated from anyone, regardless of organizational status.

      Thank you for your thought provoking response,
      David

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