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:

***

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.

MA State House hearing for Healthy Workplace Bill

In the hearing room with Greg Sorozan of SEIU/NAGE, waiting our turn to testify

On Tuesday, I joined with other supporters of the Healthy Workplace Bill (HWB) to testify on its behalf at a hearing before the Joint Committee on Labor and Workforce Development of the Massachusetts legislature, held at the State House in Boston. Getting a favorable decision out of the Committee is the first critical step toward eventual passage of the bill.

I wrote the HWB to fill a big void in current employment law that exposes workers to bullying and mobbing without adequate legal protections. It provides severely bullied workers with a civil legal claim for damages and creates liability-reducing incentives for employers to act preventively and responsively toward bullying behaviors.

This is our fourth full session before the Massachusetts legislature, and we’ve been steadily building support. In the 2017-18 MA legislative session, the HWB is designated as Senate No. 1013, backed by main sponsor Senator Jennifer Flanagan and 46 co-sponsors. You can get all the information you need, including the bill text, here.

Supporting packet of information and written testimony, given to committee members

As I’ve written before, state legislative advocacy often requires a sense of restless patience. Even the best of policy proposals can take multiple legislative sessions before they become law. Tuesday’s legislative hearing covered not only the Healthy Workplace Bill, but also other bills designed to safeguard the dignity and well being of workers. Of these bills, only a small percentage will be enacted into law during a given two-year session.

How are we doing with the HWB in Massachusetts? We are a known presence in the State House, and our advocacy group has built a good reputation for being effective and steadfast. We are educating our elected officials and their staff members through these efforts. SEIU/NAGE, a major public employee labor union, has been in our corner from the start with resources and lobbying support, and we have other organizations giving their continuing endorsements.

Gone are the days when so many people greeted proposed legislation concerning workplace bullying with a quizzical look. This work won’t be finished until we get a bill enacted into law, and we’re going to keep at it until that happens.

Healthy Workplace Bill filed for 2017-18 Massachusetts legislative session

The anti-bullying Healthy Workplace Bill (HWB) has been refiled for the 2017-18 Massachusetts state legislative session. It is designated as Senate No. 1013, backed by main sponsor Senator Jennifer Flanagan and 46 co-sponsors. The bill has been referred to the Joint Committee on Labor and Workforce Development. You can get all the information you need, including the bill text, here.

The HWB provides a civil legal claim for damages for workers who can prove that they were subjected to severe workplace bullying and creates liability-reducing legal incentives for employers to act preventively and responsively toward these behaviors. I wrote the first version of the HWB some 15 years ago. It has been introduced in various versions in over 30 state legislatures since 2003. In recent years, four states — California, North Dakota, Tennessee, and Utah — have enacted workplace bullying legislation that draws language from the template HWB, but these laws cover training and policies and do not create enforceable legal protections.

Here are the Massachusetts state legislators who have signed on to the HWB (in order of sponsorship date):

Name, District
Sen. Jennifer L. Flanagan, Worcester and Middlesex
Rep. Diana DiZoglio, 14th Essex
Rep. Frank I. Smizik, 15th Norfolk
Rep. John W. Scibak, 2nd Hampshire
Rep. Angelo J. Puppolo, Jr. 12th Hampden
Rep. RoseLee Vincent, 16th Suffolk
Sen. Thomas M. McGee, Third Essex
Rep. Louis L. Kafka, 8th Norfolk
Sen. Barbara A. L’Italien, Second Essex and Middlesex
Rep. Lori A. Ehrlich, 8th Essex
Rep. Daniel M. Donahue, 16th Worcester
Sen. Michael D. Brady, Second Plymouth and Bristol
Rep. James J. O’Day, 14th Worcester
Rep. Aaron Vega, 5th Hampden
Sen. Kenneth J. Donnelly, Fourth Middlesex
Rep. Denise Provost, 27th Middlesex
Rep. Jonathan Hecht, 29th Middlesex
Rep. Bruce J. Ayers, 1st Norfolk
Rep. Ann-Margaret Ferrante, 5th Essex
Rep. Brian M. Ashe, 2nd Hampden
Rep. Chris Walsh, 6th Middlesex
Rep. Ruth B. Balser, 12th Middlesex
Rep. Danielle W. Gregoire, 4th Middlesex
Rep. Steven Ultrino, 33rd Middlesex
Rep. Tacky Chan, 2nd Norfolk
Sen. Donald F. Humason, Jr,. Second Hampden and Hampshire
Rep. Brendan P. Crighton, 11th Essex
Rep. John J. Mahoney, 13th Worcester
Rep. Dylan Fernandes, Barnstable, Dukes and Nantucket
Rep. Solomon Goldstein-Rose, 3rd Hampshire
Sen. William N. Brownsberger, Second Suffolk and Middlesex
Rep. Russell E. Holmes, 6th Suffolk
Rep. Jonathan D. Zlotnik, 2nd Worcester
Rep. Kevin G. Honan, 17th Suffolk
Sen. Joan B. Lovely, Second Essex
Sen. James B. Eldridge, Middlesex and Worcester
Rep. Claire D. Cronin, 11th Plymouth
Rep. David T. Vieira, 3rd Barnstable
Sen. Michael O. Moore, Second Worcester
Rep. John C. Velis, 4th Hampden
Rep. Kevin J. Kuros, 8th Worcester
Rep. Alice Hanlon Peisch, 14th Norfolk
Rep. James Arciero, 2nd Middlesex
Rep. Byron Rushing, 9th Suffolk
Rep. Paul McMurtry, 11th Norfolk
Rep. Paul Brodeur, 32nd Middlesex
Sen. Sal N. DiDomenico, Middlesex and Suffolk
Rep. Christine P. Barber, 34th Middlesex

***

If you would like more information about supporting the Healthy Workplace Bill in Massachusetts, please go here.

If you would like more information about supporting the Healthy Workplace Bill in other states, please go here.

Passing workplace anti-bullying laws during the Age of Trump

Massachusetts State House: State-level advocacy is where it's at

Massachusetts State House: State-level advocacy is where it’s at

In the aftermath of the Trump victory, management-side employment lawyer Richard Cohen authored a piece for the popular Above the Law site, speculating on how the November election result will impact efforts to enact workplace bullying laws:

With the incoming Bully-in-Chief not known for his care and feeding of the weak or vulnerable, what will become of the movement against workplace bullying, which had been gathering steam? Will it go the way of Melania and disappear from view? . . .

. . . But despite the need for and desirability of anti-bullying laws, I am afraid that they will wither on the vine – for now.

Cohen’s final verdict on prospects for enacting workplace bullying legislation is a firm no, “(a)t least for four more years.”

Challenging conventional wisdom

Cohen’s conclusion no doubt reflects a good chunk of the conventional wisdom. I’ve even heard it from some of our Healthy Workplace Bill supporters, and it is posing challenges in revving up grassroots support for our latest bill filings in new sessions of state legislatures. To be sure, the political and emotional ripple effects of the Trump victory appear to have validated bullying behavior more than the anti-bullying movement.

But hold on a minute. I’d like to offer four reasons why we cannot pick up our marbles and go home, assuming we’ll have no impact of success:

First, advocacy efforts for the Healthy Workplace Bill have been, and obviously now will continue to be, concentrated at the state levels. The political machinations of a given state are often distinct from what’s happening at the national level.

Second, we have had concrete successes, despite Cohen’s claim that our efforts have been futile. In recent years, California, Tennessee, and Utah have joined various municipalities in enacting workplace bullying laws and ordinances, drawing largely from the language of the Healthy Workplace Bill. These measures have fallen short of providing comprehensive legal protections against severe work abuse — mostly dealing with adopting policies and providing in training — but they are a start.

Third, the workplace anti-bullying movement has proven itself to be something of a bi-partisan cause. True, Donald Trump and his close partisans are not going to be advocating for the Healthy Workplace Bill or anything close to it. In fact, his nominee for Secretary of Labor, Andrew Puzder, is a fast-food company CEO who is not big on supporting workers’ rights. Nevertheless, over the years many Republicans have supported efforts to enact workplace bullying legislation.

Fourth, even if prospects for passage of workplace bullying laws are dimmed in view of current national outlook, the secret to success in legislative advocacy at the state level (or any level, for that matter) is perseverance. Legislative advocacy often has a cumulative effect. Even though the process requires us to re-file the Healthy Workplace Bill for each new session, collective memories of public support help to fuel current efforts.

Our time on this is coming. Trump’s victory may make the task harder, but we still have every reason to keep forging ahead with our efforts.

***

An important sidebar: I want to clarify a point that might be implied from Cohen’s piece. Though I agree with his observation that Donald Trump is hardly a friend of the weak or vulnerable, this should not translate into the assumption that targets of workplace bullying necessarily fall into those categories. Oftentimes those targeted for bullying or mobbing are temperamentally strong individuals, at least before the abuse started. This is in sharp contrast to stereotypical scenarios of schoolyard bullying or cyberbullying of kids. For better or worse, it’s much harder to develop an easy profile of who might be targeted at the workplace.

Massachusetts residents: To connect with the MA advocacy campaign for the Healthy Workplace Bill, go to the campaign webpage or Facebook page. We’re in the process of recruiting co-sponsors for the new legislative session, so please get involved now!

Other supporters: The national HWB campaign page is here.

%d bloggers like this: