Not too long ago, any reference to workplace bullying laws in the U.S. was purely aspirational. During the past three years, however, several states and municipalities have enacted workplace bullying laws that, while falling short of providing comprehensive protection to targets of these behaviors, signal America’s growing commitment to using the legal system to prevent and respond to abusive work environments.
Since 2003, some 30 American states and territories have considered some form of workplace bullying legislation, a variation of the Healthy Workplace Bill, model anti-bullying legislation I have drafted that provides targets of severe workplace bullying with a legal claim for damages and creates liability-reducing incentives for employers to act preventively and responsively toward bullying behaviors at work.
As the full versions of the Healthy Workplace Bill continue to gain support in state legislatures, several jurisdictions have enacted some form of workplace bullying legislation. Here is a brief summary:
Fulton County, Georgia (2012)
In 2012, the Commissioners of Fulton County, Georgia, adopted a workplace anti-bullying policy that covers county employees. Under the policy, suspension and termination are possible sanctions for those who engage in severe bullying behaviors.
The Fulton County measure prohibits abusive conduct such as repeated derogatory insults and epithets; conduct of a threatening or intimidating nature; and the deliberate sabotage of someone’s work.
In 2014, Tennessee enacted a statute directing a state commission to develop a model workplace anti-bullying policy for potential adoption by state, country, and local governmental entities. The new law does not create a legal cause of action for bullied workers. Rather, adoption of the state’s model policy or one that comports with its essential features will insulate a public entity from liability:
…(I)f an employer adopts the model policy . . . or adopts a policy that conforms to the requirements set out in [the statute}, then the employer shall be immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish. Nothing in this section shall be construed to limit the personal liability of an employee for any abusive conduct in the workplace.
Obviously this is far from ideal. The specific language of the immunity provision potentially transforms the Tennessee statute into an employer safeguard measure rather than an employee protection law. The model policy has been developed, drawing heavily upon language of the Healthy Workplace Bill, but so far Tennessee officials have balked at adopting and implementing it.
California’s employment discrimination statute requires “(a)n employer having 50 or more employees” to “provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position.” Now, thanks to the 2014 amendment, covered employers must include “prevention of abusive conduct” in these training and education programs. “Abusive conduct” is defined as:
…conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.
The definition is a verbatim adoption of that contained in an earlier template version of the Healthy Workplace Bill. Furthermore, California’s requirements for sexual harassment training and education are fairly specific, but it is unclear from the language of the amendment whether training and education concerning workplace bullying will have to be as thorough as that for sexual harassment. Nevertheless, this will surely give rise to the development and marketing of education and training programs.
The California amendment does not create an independent legal claim for abusive conduct, which makes references to legally actionable conduct covered in the state’s discrimination law inapplicable to bullying situations unrelated to protected class status. However, this amendment at least raises the possibility of bullying-related wrongful discharge claims grounded in contract theory, and it certainly has caught the attention of California’s employment lawyers.
Earlier this year, Utah enacted a law requiring state agencies to train state supervisors and employees about how to prevent abusive conduct. This training, to be provided biannually, must include the definition of abusive conduct, its ramifications, resources available, and the employer’s grievance process. In addition, professional development training will also cover ethical conduct and leadership practices based on principles of integrity. The law covers only state workers and does not create a legal claim for bullying-related conduct.
- Workplace bullying legislation will be increasingly significant to employee relations stakeholders in the U.S.
- The current trend of legislative activity strongly favors public sector interventions.
- Laws such as California’s, which implicate private sector employers, are likely to have wider ripple effects on employee relations stakeholders, including lawyers, consultants, and trainers.
- The enacted state laws are very limited in scope. They heavily favor anti-bullying policies and training, while resisting the creation of new legal claims for damages for workplace bullying. This is not sufficient to encourage employers to take workplace bullying seriously.
- The definition of abusive work environments (a/k/a workplace bullying) as set out in the template Healthy Workplace Bill is very evident in recently enacted laws.
As I’ve written here before, legislative advocacy requires ongoing patience and determination; it is a not a game for those who expect quick, effective responses to even the most significant of problems. Nevertheless, this shows we’re making progress. American state legislatures in so-called red and blue states alike are demonstrating a willingness to seriously consider and even enact workplace bullying laws.
This blog post is adapted from my presentation, “The Impact of New Workplace Bullying Laws on American Employee Relations Stakeholders,” at last week’s Work, Stress, and Health conference, co-sponsored by the American Psychological Association, National Institute for Occupational Safety and Health, and Society for Occupational Health Psychology.
Those who would like to read more in-depth commentaries about workplace bullying and the law may freely download my law review article on this and related topics from my Social Science Research Network page.