Workplace bullying: HR to the rescue?

“Never fear, HR is here”??? (Image courtesy of clipartkid.com)

Over the weekend I was talking with a good friend about the roles that human resources offices play in responding to potential workplace bullying situations. We shared the observation that despite our considerable knowledge of workplace bullying, mobbing, and abuse, we could not cite a “poster case” example of HR decisively and effectively coming to the rescue of a severely bullied worker.

This is not meant to be a snarky putdown of HR or the central role it plays in modern organizations. It’s just that stories of HR intervening on behalf of a bullied or mobbed employee, especially when the perpetrators are powerful individuals within the organization, appear to be rare. By contrast, we hear a lot of anguished tales about how “HR was useless,” “HR threw me under the bus,” and “HR protected the bullies.” In the worst instances, HR has actively furthered, supported, and enabled the abuse.

That said, I think it’s important to correct or at least soften this narrative if stories of positive HR intervention are out there, as they must be. After all, successful interventions are more likely to be handled quietly, so these accounts may not become more well known. I invite readers to contribute their stories of being helped and protected by HR in bullying or mobbing situations in the comments.

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In a later post, I’ll list and discuss some helpful resources for organizations that want to empower their HR offices to prevent and respond to workplace abuse situations in proactive and ethical ways.

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

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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.

Workplace bullying: The importance of periodic survey data

The Workplace Bullying Institute’s scientific public surveys about the prevalence and nature of workplace bullying in America have been one of the most useful sets of statistical data about this form of mistreatment. Done in partnership with major international polling firm, WBI’s 2014, 2010, and 2007 surveys have been widely cited by the media and by researchers. Advocates for the anti-bullying Healthy Workplace Bill also cite survey results to lawmakers.

WBI is planning a national survey for 2017 and is conducting a crowdfunding campaign to raise monies to cover some of the costs. National public opinion surveys are expensive. WBI is a shoestring, grassroots operation that manages to do a lot with modest financing, but doing a survey of this magnitude requires extra funding. Fortunately, the Zogby polling firm is once again offering its services for a fraction of its standard fee, and this year the Minnesota Association of Professional Employees is helping to underwrite costs. Still, there’s a shortfall, and hence this modest GoFundMe fundraiser announced by WBI’s Gary & Ruth Namie earlier this week.

As someone who has benefited from open access to this survey data time and again, I’m happy to contribute. I hope that others who understand the importance of these surveys and who are in a financial position to help out will consider a contribution as well. Here in the U.S., we are gradually putting together a body of research on workplace bullying, mobbing, and abuse within the fifty states. WBI’s national surveys have become an important part of that collection of data.

 

Types of workplace bullying and potential legal protections in the U.S.

Last year, counselor Rosemary K.M. Sword and noted psychologist Philip Zimbardo wrote up a nice little summary about the types of bullying that one might encounter in our society, including workplaces, for their Psychology Today blog, Time CureI’d like to take a quick look at those categories and then briefly discuss what potential legal protections may be available in cases of bullying at work.

Sword and Zimbardo identified six basic categories of bullying, while recognizing that these forms may overlap:

  • “Physical Bullying” covers “physical actions to gain power and control over their targets.”
  • “Verbal Bullying” uses “words, statements and name-calling to gain power and control over a target.”
  • “Prejudicial Bullying” is grounded in “prejudices people have toward people of different races, religions or sexual orientation.”
  • “Relational Aggression” refers to “a sneaky, insidious type of bullying that manifests as social manipulation.”
  • “Cyberbullying” involves the use of “the internet, cell phones or other technology to harass, threaten, embarrass or target another person.”
  • “Sexual Bullying” involves “repeated, harmful and humiliating actions – sexual name-calling, crude comments, vulgar gestures, uninvited touching or sexual propositioning – that target a person sexually.”

Sword and Zimbardo offer further explanations for each category; I suggest reading the complete post for the full profiles.

Their solutions emphasize responses for helping children who have been bullied. There’s less that applies to adult targets. However, their blog is primarily about “(n)ew approaches to overcoming PTSD, depression, and anxiety,” so it may be of general interest to readers here. (By the way, Dr. Zimbardo may be especially familiar to some readers for his book The Lucifer Effect: Understanding How Good People Turn Evil.)

Legal and liability perspectives

In the context of workplace bullying, some categories are more relevant than others in terms of potential legal protections, employee benefits, and employer liability in the U.S. Here is a very brief summary, with my usual disclaimer that it should not be considered or relied upon as legal advice:

Prejudicial bullying and sexual bullying are clearly the most obvious candidates for legal intervention, as they directly implicate employment discrimination laws. However, workers still need to prove that the bullying was motivated by their sex, race, or some other characteristic covered by these laws.

Physical bullying that causes injury may qualify a target for workers’ compensation and, in some instances, open doors to tort claims such as assault and battery against the aggressors.

With cyberbullying, much depends on the content. Obviously, if it involves, say, sexual harassment, then legal protections may apply. But generic bullying may escape legal responsibility.

Verbal bullying that causes disabling emotional distress may qualify a targeted workers for workers’ compensation and, in some cases, create tort liability for individual aggressors for claims such as intentional infliction of emotional distress.

Relational aggression, which sometimes delivers the hardest punches to emotional well being and reputation, unfortunately presents the least in terms of potential legal protections, due largely to its often complicated and insidious nature. Unpacking behaviors such as sabotage, defamation, and deliberate undermining is not easy.

Two other points:

First, if an employee handbook covers generic bullying and harassment, workers may have a contractual right to raise complaints about such mistreatment and to seek relief.

Second, an employee covered by a union-secured collective bargaining agreement may find in it provisions that relate to bullying in the form of unfair or abusive management practices.

Obviously the legal situation in America is far from ideal. Enactment of the proposed Healthy Workplace Bill will fill in many of these gaps, but until that day comes, many forms of severe bullying at work will continue to be beyond the reach of the legal system.

After Auschwitz, Viktor Frankl saw only two races

When Viktor Frankl reflected upon his experiences as a Nazi concentration camp prisoner, including time spent at Auschwitz, he concluded that humanity basically divided into two races:

From all this we may learn that there are two races of men in this world, but only these two — the “race” of the decent man and the “race” of the indecent man. Both are found everywhere; they penetrate into all groups of society. No group consists entirely of decent or indecent people.

This passage comes from Frankl’s classic work, Man’s Search for Meaning (p. 86, Beacon Press 2006 ed.), which I have praised in previous posts. It’s an extraordinarily gripping and perhaps odd book. Part 1, covering the first 90+ pages, is a compelling account of daily life in the concentration camps, punctuated by Frankl’s observations about human nature in such horrifying settings. Part 2, covering the remaining 60+ pages, is a more detached description of logotherapy, the school of psychotherapy founded by Frankl, a clinical psychologist. Logotherapy, as Frankl describes it, focuses the patient “on the future, that is to say, on the meanings to be fulfilled by the patient in his future,” while defocussing the patient on “all the vicious cycle formations and [negative] feedback mechanisms” (p. 98).

Some may quarrel with Frankl’s binary separation of humanity into categories of “decent” or “indecent” people. In fact, I reacted this way when I first read the quoted passage, thinking that human beings are way too complex to be placed into one of two big groups. Furthermore, Frankl’s own narrative of concentration camp life describes how people who have lived good, moral lives can be driven to self-preserving behaviors that may, directly or indirectly, hurt others. But then I tried to put myself in Frankl’s shoes, imagining what he saw and experienced in the camps. It makes sense to me that he ultimately drew this dividing line, however subjective.

Frankl’s description of concentration camp life and explanation of logotherapy may resonate with those who are experiencing psychological trauma due to nightmarish work situations. As I have written before, the eliminationist instinct is not limited to large-scale horrors. It can manifest itself in seemingly everyday settings such as our workplaces, too.

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A sidebar: In sharing Frankl’s words about the “races” of decent and indecent people, in no way do I want to diminish important, challenging discussions taking place over race and ethnicity in contemporary society. We can and should face the tough questions raised by our various diversities and strive to find ways to build acceptance of those differences in our workplaces, communities, and social groups. Rather, I wanted to share how someone who faced good and evil every day at the most fundamental levels came to look at groupings of human beings in a simpler way than we might today.

Workplace bullying and mobbing: Individual vs. organizational accountability

image courtesy of clipartfest.com

image courtesy of clipartfest.com

So here’s my question for today: When you think about accountability for workplace bullying and mobbing, do you think more about individual aggressors or about the organizations that hire and keep them on the payroll?

Of course, the pat response — in fact, the right one, I’d argue — is both. But I’d submit that the calculus is not uniform, and that the perch from where we sit may determine our personal answers. Here are a few of my observations on this question:

  • Bullying and mobbing behaviors are typically targeted and personalized. Sometimes the motivations for the abuse are transparent. But often they are not. Furthermore, they may not be rational, in that the underlying reason(s) for the abuse can be explained in a way that easily makes sense. Figuring out motivations sometimes can be a challenge for a targeted worker, adding to the confusion and bewilderment of the experience and sharpening the focus on specific aggressor(s).
  • Nevertheless, as intensely interpersonal as these behaviors may become, they usually cannot flourish without organizational sponsorship, enabling, or, at the very least, indifference. This applies specially to mobbing, which requires multiple players, often aided by institutional mechanisms.
  • For an individual targeted by bullying or mobbing, the natural focus is on the closest abusers and tormenters. However, the target often recognizes the organizational dynamic when reaching out for help and finding that little or no genuine assistance is available.
  • If we want to prevent and stop bullying and mobbing at work, the first view should be organizational and systems-based, looking especially at top leadership and workplace culture. Bullying and mobbing rarely thrive at organizations committed to treating their employees with a baseline of dignity and to hiring workers who share that commitment.

For those interested in the legal side, the anti-bullying Healthy Workplace Bill that I’ve authored recognizes both organizational and individual responsibility for creating abusive work environments. Under my template version of the legislation, those who have been subjected to severe workplace bullying may pursue claims against both their employer and the individual tormenters. Furthermore, in recognition of the overall role played by employers, the legislation includes liability-reducing incentives for employers that act preventively and responsively toward bullying behaviors.

Bad work situations: When do you need an employment lawyer?

Image courtesy of clipart panda.com

Image courtesy of clipartpanda.com

A negative performance review. An oral warning. A rumor that your job isn’t secure. Resistance — or perhaps retaliation? — in response to a concern you’ve raised about possibly unethical or illegal behavior. A gut feeling that you’re being singled out for mistreatment.

These are among the on-the-job signs that raise the question of whether it’s time to seek the advice of a lawyer.

When it comes to workplace situations, many people don’t seek legal advice until it’s too late, usually after a termination. I’d like to take a few minutes to urge that earlier is usually better and to offer suggestions on seeking legal advice. The bulk of what follows is written with American workers in mind, with apologies to many loyal readers who are from other countries.

Earlier is usually better

There is no hard and fast rule on when to seek the advice of an employment lawyer. But generally speaking, earlier is better. Knowing what rights you have and don’t have, and getting some sense of whether your concerns implicate employment protections, can help you assess your options and plan accordingly (legally and otherwise).

One’s instincts can be very useful in cueing a decision to seek legal advice. If it feels bad, it often is worthy of concern. In some cases, very early consultation may be appropriate, such as if you’re asked to sign a very restrictive non-compete agreement or any significant waiver of your employment rights.

In the case of a layoff or termination, legal advice may be helpful in weighing potential severance packages and agreements, even if you’re not contemplating a lawsuit.

Suggestions and points of information

  1. Consulting a lawyer in no way obliges you to file a lawsuit or take any further action. Those decisions are yours.
  2. In most cases it’s advisable not to inform your employer or co-workers that you’re seeking legal advice; that should wait until later, if at all. This is not a universal rule, but it should be considered the default starting place.
  3. Initial consultations with employment lawyers may cost you some money, and those fees can vary widely.
  4. Come prepared for any initial phone or in-person consultation. Have any relevant employment evaluations, employer communications, employee handbooks & policies, etc., available to discuss and share. If possible, prepare a short, chronological, bullet-point summary of major events related to your concerns.
  5. Legal consultations need not be limited to questions about potential litigation. They may also cover eligibility for benefits such as workers’ compensation claims, family and medical leave, and unemployment insurance.
  6. Human resources offices owe their allegiance to the employer, not to the individual employee. Reporting concerns to HR or a similar in-house office does not substitute for obtaining independent legal advice.

How to find an employment lawyer

I strongly advise seeking a lawyer who is experienced and knowledgeable in the field of employment law and who specializes in representing workers. Most attorneys in this field represent either workers (i.e., plaintiffs in potential claims) or management (defense); it is unusual to find those who work on both sides.

While this blog isn’t in a position to offer specific attorney referrals, resources for identifying employment lawyers are readily available. Many of the best plaintiffs’ employment lawyers belong to the National Employment Lawyers Association (NELA), a bar association whose members devote a large share of their practices to representing workers in disputes with current and past employers. The national NELA website offers online legal referral assistance and may be accessed without charge. State-level NELA chapters may have websites that offer similar online referral assistance or contain browsable member listings and links; the Massachusetts chapter is an example of the latter.

Local and state bar associations may also offer attorney referral services.

If you are specifically seeking advice on a workers’ compensation matter, then it’s preferable to consult an attorney who specializes in this sub-field.

Some legal services offices provide advice and representation on employment-related matters. Because of the heavy demand, income eligibility guidelines are pretty stringent, but if you are not employed and have few financial resources, it’s possible that you may qualify for assistance.

Alternatives to consulting a lawyer

Certain public agencies are charged with enforcing employment protections and may be approached by members of the public who have concerns and questions about their rights. They also serve as intake portals for formal claims and complaints. These options may be viable alternatives to hiring a private attorney. The following is not an exhaustive list, but here are some of the most likely agencies for employment-related complaints:

  • The federal Equal Opportunity Employment Commission and its state and local counterparts, responsible for enforcing employment discrimination laws;
  • The federal Occupational Safety and Health Commission and its state counterparts, responsible for enforcing workplace health and safety laws;
  • The federal Department of Labor and its state counterparts, responsible for enforcing minimum wage and overtime laws, as well as other labor standards; and,
  • The federal National Labor Relations Board and its state counterparts, responsible for enforcing laws concerning collective bargaining and concerted worker activities.

Union members

In addition, union members should definitely contact a shop steward or union representative with concerns about potential discipline or termination. The protections offered in collective bargaining agreements typically far exceed those afforded to workers who are not union members.

For those who are experiencing workplace bullying

Many of us in the U.S. are all too aware that we currently have no direct legal protections against workplace bullying and mobbing. I see that situation changing in the years to come. However, for now those who seek legal advice for workplace bullying are highly unlikely to find lawyers who specialize in bullying claims because, well, it’s hard to specialize in a sub-field concerning behaviors that are not yet the subject of direct liability.

Currently, then, obtaining legal relief for bullying and mobbing usually boils down to whether the mistreatment can be sufficiently shoehorned into existing legal protections, such as employment discrimination laws and anti-retaliation provisions of whistleblower laws. In some cases, employee policies or collective bargaining agreements may cover bullying-type behaviors, thus possibly creating contractual protections and obligations. It is helpful to think through these potential legal links before consulting a lawyer.

Just the beginning

Folks, these are hardly the first or last words to be shared on the topic of working with employment lawyers and the decisions involved in contemplating legal action. The full treatment would require a short book, and even then I doubt that all the contingencies could be covered. However, I hope these points are helpful to those who may be seeking legal advice in connection with a work situation.

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