Powerful, well-funded corporate and business interests are contacting Massachusetts state legislators and generating letter-writing campaigns to voice their opposition to the anti-bullying Healthy Workplace Bill (filed as House No. 2310 in the 2011-12 session).
In some ways, this is a good sign. It means that the HWB is being taken seriously.
Nevertheless, as author of the underlying language of the HWB, I’ve examined their claims and found them wanting. Here are my responses:
1. Claim: Existing harassment law is sufficient to protect bullying targets.
Reality: This is untrue. Harassment law protects only those individuals who can prove that the mistreatment is due to their protected class membership, such as sex, race, or age.
The HWB protects all employees from abusive mistreatment on an equal opportunity basis, filling a huge gap in the law.
2. Claim: Existing tort (personal injury) law is sufficient to protect bullying targets.
Reality: 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. Even if this bar was removed, my extensive analysis of IIED claims brought against employers in other states shows that most targets of standard-brand, severe workplace bullying are unable to recover (or even to get to trial).
3. Claim: The Healthy Workplace Bill will open floodgates of litigation.
Reality: 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, their clients, and the courts recognize the high threshold for recovery (including intent to cause distress and resulting physical and/or psychological harm).
The HWB has three primary goals: (1) preventing bullying; (2) encouraging prompt and fair employer responses to reports of bullying; and (3) providing compensation to targets of severe, health-harming bullying. Good employers can minimize their liability and, in the process, have a healthier, more loyal, more productive workforce as a result.
4. Claim: The Healthy Workplace Bill will hurt small businesses.
Reality: Small businesses also suffer devastating productivity and morale losses when bullying occurs. In fact, with fewer people on the payroll, small businesses experiencing workplace bullying have less flexibility than larger ones to move around employees and make personnel changes. The HWB will incentivize preventive efforts for these businesses.
5. Claim: We should give employers a chance to address bullying voluntarily first.
Reality: Workplace bullying is not new to the American workplace, even if the label is relatively recent. Employers have had decades to address the psychological abuse of employees, and all too often they ignore the complaints or side with the aggressors. Now it is clear that the law should enter the picture to encourage them to stop this form of interpersonal abuse.
6. Claim: The Healthy Workplace Bill takes away the ability of employers to manage their workforce.
Reality: This is untrue. The HWB enters the picture only when the bullying behaviors have become severe and harmful. It provides legal incentives for employers to sharply minimize their liability exposure by acting preventively and responsively toward bullying, and it reserves the right of employers to conduct evaluations and provide feedback and direction to their employees.
For more information:
For the new blog of the Massachusetts Healthy Workplace Advocates, go here.