Healthy Workplace Bill: Forty-five percent of the Massachusetts legislature supports workplace anti-bullying legislation

The Healthy Workplace Bill (HWB), which permits targets of severe workplace bullying to seek damages in court and creates liability-reducing incentives for employers to act preventively and responsively towards bullying behaviors at work, is gaining considerable momentum in the new session of the Massachusetts legislature. As of Friday, February 1, lead sponsor Senator Paul Feeney has been joined by 90 legislative co-sponsors in supporting the bill — representing some 45 percent of the Massachusetts legislature.

This is one of the strongest showings of legislative support for comprehensive workplace anti-bullying legislation at the bill-filing stage in the young history of the national advocacy campaign on behalf of the HWB.

As readers familiar with legislative processes know, the process of enacting new legislation — especially on cutting-edge subjects — is often a long slog requiring patience and commitment. This is our fifth full session of bringing the HWB to the Massachusetts legislature. We’ve continued to build support for the HWB during every session, and that work is paying off. The current list of co-sponsors far exceeds the previous record of 58 for the 2015-16 session.

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For years, the lead sponsor of the HWB was Rep. Ellen Story, and her steadfast work brought us a long way. Since Rep. Story’s retirement, our new lead sponsor, Sen. Feeney, has stepped in to give the HWB his fullest commitment. Like Rep. Story, Sen. Feeney and his staff have worked closely with our advocates to build support for the bill.

On the advocacy front, special shout-outs go to two co-coordinators of this campaign: Deb Falzoi, whose invaluable efforts in leading our advocacy group and social media outreach have fueled the growing momentum behind the bill; and Greg Sorozan, whose vital work as a union leader through SEIU/NAGE (a major public employee union in Massachusetts) has given us critically useful insider assistance in advocating for the HWB in the legislature.

And at its core, this grassroots legislative campaign is about the thousands of individuals who are calling, e-mailing, and visiting their legislators to urge their support of the HWB. Many have shared personal stories of experiencing workplace abuse. A lot of folks are bravely stepping up to make a difference.

This work is far from finished. When it comes to legislative advocacy, there are no guarantees. That said, having 91 legislative supporters of the HWB in Massachusetts is a major step forward. We have gone from being a novelty, to a presence, and now to a genuine force. 

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The Massachusetts HWB currently carries the docket number 1355. The permanent bill number for the 2019-20 session will be assigned later. For more information about the Massachusetts advocacy campaign for the HWB, see its website (here) or Facebook page (here).

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As some readers may know, the seeds of the HWB were planted in a law review article that I authored (published in 2000 by the Georgetown Law Journal), in which I surveyed the serious inadequacies of existing employment protections for targets of workplace bullying and suggested the parameters of needed new legal protections. I drafted the original version of the HWB in 2002, and in 2003, it was filed for the first time in the California legislature — championed by Drs. Gary and Ruth Namie of the pioneering Workplace Bullying Institute.

When I embarked on this work some 20 years ago, I had no idea of where it might lead. But thanks to the efforts of countless individuals, we are now creating growing legislative recognition that the harm wrought by workplace bullying, mobbing, and abuse should be subject to legal consequences. At this point, it’s about building public support for legal measures to fill the huge gaps that leave workers so vulnerable to these forms of interpersonal mistreatment.

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Here is the current list of supporters. Because the State Senate has a later deadline for co-sponsoring bills, it is very possible that we’ll be adding additional names.

Name District/Address
Paul R. Feeney Bristol and Norfolk
Ruth B. Balser 12th Middlesex
Jack Patrick Lewis 7th Middlesex
Diana DiZoglio First Essex
Steven Ultrino 33rd Middlesex
Lindsay N. Sabadosa 1st Hampshire
Maria Duaime Robinson 6th Middlesex
Denise Provost 27th Middlesex
Rebecca L. Rausch Norfolk, Bristol and Middlesex
Daniel M. Donahue 16th Worcester
Carmine Lawrence Gentile 13th Middlesex
Angelo J. Puppolo, Jr. 12th Hampden
Carolyn C. Dykema 8th Middlesex
Patrick M. O’Connor Plymouth and Norfolk
James T. Welch Hampden
Aaron Vega 5th Hampden
David Allen Robertson 19th Middlesex
Natalie M. Higgins 4th Worcester
James J. O’Day 14th Worcester
Joanne M. Comerford Hampshire, Franklin and Worcester
Louis L. Kafka 8th Norfolk
Tommy Vitolo 15th Norfolk
Tram T. Nguyen 18th Essex
Carole A. Fiola 6th Bristol
Mike Connolly 26th Middlesex
Adrian C. Madaro 1st Suffolk
Thomas M. Stanley 9th Middlesex
James B. Eldridge Middlesex and Worcester
Anne M. Gobi Worcester, Hampden, Hampshire and Middlesex
Kevin G. Honan 17th Suffolk
Patrick Joseph Kearney 4th Plymouth
Daniel J. Hunt 13th Suffolk
Bruce E. Tarr First Essex and Middlesex
Kate Hogan 3rd Middlesex
Marjorie C. Decker 25th Middlesex
Michael J. Rodrigues First Bristol and Plymouth
Edward F. Coppinger 10th Suffolk
Bud L. Williams 11th Hampden
Bruce J. Ayers 1st Norfolk
Elizabeth A. Malia 11th Suffolk
John J. Mahoney 13th Worcester
Paul McMurtry 11th Norfolk
John J. Lawn, Jr. 10th Middlesex
David M. Rogers 24th Middlesex
Danielle W. Gregoire 4th Middlesex
Todd M. Smola 1st Hampden
John C. Velis 4th Hampden
Tami L. Gouveia 14th Middlesex
Jay D. Livingstone 8th Suffolk
Lori A. Ehrlich 8th Essex
Sal N. DiDomenico Middlesex and Suffolk
RoseLee Vincent 16th Suffolk
Tackey Chan 2nd Norfolk
Daniel R. Carey 2nd Hampshire
Alan Silvia 7th Bristol
David Henry Argosky LeBoeuf 17th Worcester
Paul W. Mark 2nd Berkshire
Russell E. Holmes 6th Suffolk
Jonathan D. Zlotnik 2nd Worcester
Antonio F. D. Cabral 13th Bristol
Andres X. Vargas 3rd Essex
Christina A. Minicucci 14th Essex
Ann-Margaret Ferrante 5th Essex
Michael O. Moore Second Worcester
Sean Garballey 23rd Middlesex
Jonathan Hecht 29th Middlesex
James M. Kelcourse 1st Essex
Mathew J. Muratore 1st Plymouth
Liz Miranda 5th Suffolk
Jerald A. Parisella 6th Essex
Elizabeth A. Poirier 14th Bristol
Donald F. Humason, Jr. Second Hampden and Hampshire
Joseph A. Boncore First Suffolk and Middlesex
Julian Cyr Cape and Islands
Michael F. Rush Norfolk and Suffolk
Susannah M. Whipps 2nd Franklin
Jon Santiago 9th Suffolk
Carlos González 10th Hampden
Brian M. Ashe 2nd Hampden
Paul F. Tucker 7th Essex
James Arciero 2nd Middlesex
Stephan Hay 3rd Worcester
Daniel R. Cullinane 12th Suffolk
David T. Vieira 3rd Barnstable
Jeffrey N. Roy 10th Norfolk
Chynah Tyler 7th Suffolk
Michelle L. Ciccolo 15th Middlesex
Kay Khan 11th Middlesex
James K. Hawkins 2nd Bristol
Mindy Domb 3rd Hampshire
Natalie M. Blais 1st Franklin

Legislative co-sponsors sought for the Healthy Workplace Bill in Massachusetts

Here in Massachusetts, we’re gearing up to support the anti-bullying Healthy Workplace Bill in the new (2019-20) legislative session of the state legislature. Our lead sponsor, State Senator Paul Feeney (Bristol & Norfolk) has filed the bill, which carries the docket number 1355. (Important note: This is not the permanent bill number for the session, which will be assigned later.)

If you live in Massachusetts and support this legislation, then please contact your state senator and state representative and urge them to co-sponsor Senate Docket 1355. We have until Friday, February 1 to add co-sponsors.

The Massachusetts Healthy Workplace Advocates have scheduled a January 30 lobby day to help secure co-sponsors. Go here for more information.

With each legislative session, we have continually expanded support towards passage of the Healthy Workplace Bill. We are optimistic for progress in this session. Workplace bullying, mobbing, and abuse are receiving increasing media attention, and our growing advocacy group is strong and determined. Building a long list of co-sponsors is an important start.

Redbook magazine examines bullying of women at work

 

Writer Jessica Press was caught by surprise. When she posted to social media that she was looking for stories from women about their experiences of being bullied at work, she expected a sprinkling of replies. Instead, as she recounts in the lede to her feature article appearing in Redbook magazine’s October issue, she got a deluge:

My inbox was flooded — overflowing with incoming mail. I’d put out the call to a handful of experts and Facebook groups for women’s stories of workplace bullying. I thought perhaps I’d hear from a dozen women.

Instead, within a week, nearly a hundred stories from around the country and around the world poured in, with a steady stream continuing in the days and weeks that followed. They worked in hospitals, academia, sales, food service — anywhere and everywhere. There were women still living in fear of retaliation. There were those who shared their journeys of deteriorating marriages, depression, anxiety, and PTSD-like symptoms. There were a surprising number who had involved lawyers and were limited in what they could even reveal due to nondisclosure agreements.

It’s a substantial feature article, and I suggest giving it a full read. Among those interviewed was Deb Falzoi, one of the key advocates for the anti-bullying Healthy Workplace Bill here in Massachusetts:

“Every day I would come to work feeling like, What is she going to do today? remembers Deb Falzoi. “Now that I know the ways bullies work, I realize she was very textbook. There were false accusations, removal of my responsibilities. At the time I didn’t know what to call what was happening to me. When I finally found the term ‘workplace bullying’ and saw that there was research on the issue, I felt a sense of relief. I hear that same thing from other targets.”

Press also gives a shout-out to our national campaign to enact the Healthy Workplace Bill:

[Drs. Gary] Namie and his wife, Ruth, the cofounder of [the Workplace Bullying Institute], along with David Yamada, professor of law and director of the New Workplace Institute at Suffolk University Law School in Boston, are leading a movement to pass the Healthy Workplace Bill, which Yamada wrote. The bill would give both workers and employers clear-cut rights and clearly defined boundaries, which are of course the basis of any healthy relationship, professional or otherwise. “It provides an incentive for employers to adopt reasonable steps to prevent and correct bullying, which translates to having a policy and faithfully enforcing it,” explains Namie.

What’s the significance of Redbook doing a feature piece on the bullying of women at work?

I think it’s another important sign of the mainstreaming of workplace bullying and mobbing behaviors as topics worthy of our close attention. After all, Redbook is a long-time, monthly lifestyles magazine marketed primarily to women, with a circulation of some 2.2 million. That’s a sizable readership.

This is akin to the Boston Globe‘s front page feature on workplace bullying that appeared at the turn of the year.

These articles are an important form of public education about work abuse. And especially for those who are targeted by these behaviors, they serve an informative and validating purpose that helps them understand what they’re experiencing. I hope we see a lot more coverage like this.

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

In April 2017, union local president Greg Sorozan and I testified in support of the anti-bullying Healthy Workplace Bill at a hearing before the Joint Committee on Labor and Workforce Development of the Massachusetts state legislature. Until recently, I didn’t know that Greg’s union, the National Association of Government Employees, had posted a video of our testimony on their YouTube page. It runs for just under six minutes.

I’m happy to report that the HWB, filed in Massachusetts as Senate Bill No. 1013 for the current 2017-18 session, has been favorably reported out of the Joint Committee, putting it an important step closer to a full floor vote in the Senate. As the author of the HWB’s template language, I am hoping that Massachusetts will become the first state to enact the full version of the HWB. Several other states have enacted workplace bullying legislation that draws upon the model language but falls short of creating a legal right to file a legal claim for damages.

When a prominent employee is fired for creating an “abusive work environment”

Workplace bullying, not sexual harassment, prompted this week’s termination of popular Boston public radio program host Tom Ashbrook by his employer, Boston University, which owns the WBUR-FM radio station. From the station’s report:

BU reached this decision after an independent review verified claims that Tom had created an abusive work environment. Over the past two months, while Ashbrook was off the air, two firms investigated allegations made by 11 former On Point producers. A law firm looked into the sexual harassment allegations and found that Tom’s unwelcome conduct was not sexual in nature, and did not constitute sexual harassment under university policy. A consulting firm looked into broader workplace culture issues at On Point. It concluded that Tom consistently overstepped reasonable lines and created a dysfunctional workplace. The investigators talked with about 60 people, including Tom and management.

In December, sexual harassment allegations against Ashbrook surfaced publicly, and soon it became evident that bullying-type behaviors were also part of the alleged misconduct. He was suspended by WBUR pending an investigation.

That month I was invited by WBUR to do a segment on the legal differences between sexual harassment and workplace bullying. On December 14 I was interviewed by Deborah Becker; you can read the transcript or listen to the 6-minute interview here. I used the term “abusive work environment” to describe how my proposed workplace anti-bullying legislation — known as the Healthy Workplace Bill — characterizes workplace bullying. I found it interesting that WBUR used the same term to describe Ashbrook’s conduct, distinguishing it from sexual harassment.

The Ashbrook situation raises several important points:

First, as we are seeing with other public allegations of sexual harassment, workplace bullying is often part of the picture. Accused serial sexual harasser Harvey Weinstein, for example, has also been tagged as a bullying boss. As reported last October by Brett Lang for Variety

In an industry known for attracting its share of screamers, few raged as violently as Harvey Weinstein. “There was a lot of pounding his fists on the desk and a lot of yelling,” said one of his former employees. “There was an anger inside of him that was jarring and scary.”

Another onetime staffer says that in recent years Weinstein had reined in a penchant for physical altercations but had not lost his talent for berating employees. He was particularly cruel with assistants and executives who didn’t push back when he tore into them.

Second, Ashbrook’s termination indicates that some employers are starting to get it about workplace bullying and its destructive effects on morale. Although it must be said that Ashbrook’s behavior was apparently no secret within WBUR for some time, when things did go public and the station ordered an investigation, they fired him despite a finding that there was insufficient evidence to support claims of sexual harassment. Rather, they cited the bullying behaviors as the main reason for the decision.

Third, this doesn’t mean that everyone is satisfied with a decision to terminate a well-known radio host for workplace bullying. Looking at social media comments, several posters accused Ashbrook’s co-workers of being “snowflakes” who couldn’t take his rough communication style. Based on my knowledge of folks who work in media settings, I would take issue with such characterizations. The electronic and print media are not vocations for the feint of heart, and I doubt that many folks at WBUR, if any, fit into the category of being “oversensitive.” But this is among the responses we can anticipate as more employers respond to workplace bullying.

Boston Globe goes front page on workplace bullying

The Boston Globe‘s decision to put Beth Teitell’s excellent feature on workplace bullying on its Dec. 30 edition front page was a welcomed development to close out 2017. Among other things, it may be the first time that a major newspaper has given front page status to a piece on workplace bullying. Here’s the lede:

As workplaces of every imaginable kind are rocked in the national reckoning over abuses of sex and power, some say another, related issue waits in the shadows.

Experts say it can be more common and as damaging to its victims as sexual harassment, but with no clear definition in the law or widespread social recognition, it remains largely out of the public eye.

It’s called workplace bullying, although victims say the term doesn’t fully capture its power.

Of course, those of us who have become closely familiar with workplace bullying might quarrel with the article’s characterization of it being “in the shadows” and lacking wide recognition, but the underlying truth is that we’re talking about a very common and destructive form of workplace mistreatment that still doesn’t receive sufficient attention. Pieces like this one help to bring it out of the shadows and put a label to behaviors that too many have suffered with in silence.

Teitell gives a few snapshot examples of bullying at work:

…A former public school instructor who spoke to the Globe says she was denied the opportunity to sign group birthday and condolence cards after she challenged an administrator. Another person, a high-level state administrative assistant, said she was reassigned to reorganize a storage room, endlessly, according to an attorney she contacted.

In yet another case, a longtime state employee with peanut and tree allergies alleges her supervisor or one of two co-workers smeared peanut butter on a folder sitting on her desk. “They just thought it was a joke,” she said. “One day they stood outside my office door and sang a stupid song they made up about how much they love Almond Joys.”

The article doesn’t get into the more drawn out and deeply malicious accounts of bullying and mobbing that send shivers up our spines. Nevertheless, it covers a lot of ground and also gives a nod to the anti-bullying Healthy Workplace Bill, which is currently pending before the Massachusetts state legislature.

Equally important, of the 80+ comments left by readers, many understand what workplace bullying is all about, and many shared bits of their stories. It’s one of the few times that I’ll say the comments following a posted news article are worth reading.

This one of several articles on or mentioning workplace bullying that have been inspired by the numerous public revelations of workplace sexual harassment. I’ll have more to say about these linkages in a post this month.

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:

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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.

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