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.

Personal crises and work life

Writing for the Harvard Business Review, Amy Gallo provides a very good advice piece on how to think through options when a personal crisis is affecting your work life. The crisis may be a family member with an illness, your own health situation, a divorce, or any other significant external stressor. Gallo’s full article goes into helpful detail, explaining key advice and discussing several case examples. She summarizes her major points this way:

Do:

  • Determine what type of support you need — at home and at work.
  • Tell your colleagues what’s happening so that they feel compassion for your situation.
  • Make clear, specific requests of your coworkers and boss so that they know how they can help you.

Don’t:

  • Feel you have to tell everyone directly — it’s OK to ask close colleagues to explain to others what’s going on.
  • Share every detail of your situation; tell coworkers only the details that are pertinent to them.
  • Assume that it will be painful to continue working during this time — sometimes going to the office can be a comfort.

Employee benefits

I’m going to put on my employment lawyer hat and underscore the importance of understanding your benefit options.

First, know your employee benefits. They may include, among other things, vacation and sick days, personal leave, and perhaps even pay advances or long-term disability coverage.

Second, if the situation involves your own health, you may have a right to a reasonable accommodation under the Americans with Disabilities Act and/or an equivalent state law.

Third, if your health or that of an immediate family member is involved, consider the option of unpaid leave under the Family and Medical Leave Act. Some employers and a few jurisdictions may offer paid medical leave.

Words of caution

Finally, if you happen to be working for a not-so-great employer, be careful about disclosures and requests involving personal crises — notwithstanding Amy Gallo’s advice. Unfortunately, there are all too many stories of unscrupulous employers using an employee’s personal crisis as a way of pushing them out of the workplace. Maybe they don’t want to provide medical leave or a reasonable accommodation. Maybe they’re looking for the right excuse to get rid of an otherwise productive worker. As many of those who have experienced workplace bullying can attest, some abusive managers are very, very good at sniffing out vulnerability.

If you think your situation may be putting your job at risk, that is the time to seek the advice of a lawyer who specializes in representing employees. For more on securing an employment attorney, see my article posted earlier this year, “Bad work situations: When do you need an employment lawyer?

On racism and bias: Research confirms that Rodgers & Hammerstein got it right

In the aftermath of the Charlottesville, Virginia, white supremacist rally, the Washington Post‘s William Wan and Sarah Kaplan set out to learn about the science behind racism and bias. Here’s an answer from one social psychologist they interviewed:

“In some ways, it’s super simple. People learn to be whatever their society and culture teaches them. We often assume that it takes parents actively teaching their kids, for them to be racist. The truth is that unless parents actively teach kids not to be racists, they will be,” said Jennifer Richeson, a Yale University social psychologist. “This is not the product of some deep-seated, evil heart that is cultivated. It comes from the environment, the air all around us.”

And here’s more from another psychology prof:

“An us-them mentality is unfortunately a really basic part of our biology,” said Eric Knowles, a psychology professor at New York University who studies prejudice and politics. “There’s a lot of evidence that people have an ingrained even evolved tendency toward people who are in our so-called ‘in group.’”

But how we define those groups, and the tendency to draw divisions along racial lines, is social, not biological, he added. “We can draw those lines in a number of ways that society tells us,” he said.

…“The most likely predictor of that is exposure to a kind of ideology,” Knowles said. Most if not all people carry implicit biases and unexamined prejudices, he said, and some may harbor feelings of fear or resentment that they don’t express in public.

These insights are important, and kudos to these reporters for presenting a scientific perspective on the racism that motivated this horrible event. As helpful as this research is, however, it only reaffirms what some folks have known for years: That bigotry and bias are taught and reinforced by society.

In fact, if you want a more pop culture approach to this basic postulate, go back to the classic Rodgers & Hammerstein musical “South Pacific,” which opened on Broadway in 1949 and was later made into a movie in 1958. Set on a South Pacific island during World War II, the show deals with serious issues of race and color and was considered quite controversial for its time. One of the numbers, “You’ve Got To Be Carefully Taught,” is about how people learn racist beliefs and intolerance. Go here or click above for a snippet of the song from the movie version.

***

Related note: The Bloomberg/BNA Daily Labor Report interviewed me about the employment law implications of the Charlottesville rally in this piece, “Can You Fire Someone for Attending a Rally of Racists?”

Can an employer fire a publicly-avowed white supremacist?

Screenshot of rally photo from Huffington Post

While following developments concerning the horrific white supremacist/neo-Nazi/KKK rally in Charlottesville, Virginia this weekend, I asked myself, how would I like to be working with one of these lovely individuals? I then thought, if I was a manager, could I simply fire a white supremacist for participating in the rally?

The answer to the first question is easy and purely personal: No way would I want to share office space, a cubicle area, an office suite, a store floor, or a factory floor with one of these folks. And as an Asian American, I assume they’d feel the same way towards me.

The answer to the second question is more objective, complicated, and nuanced: Yes, in many instances the law would allow a manager to terminate a white supremacist for participating in the rally, but there are potential exceptions and twists, especially for unionized and/or public employees. Without pretending to be exhaustive on the topic, here’s a brief lowdown of relevant legal rules:

  • In the U.S., the rule of at-will employment is the presumptive legal hiring relationship. Among other things, it means that an employer can hire or fire someone for any reason or no reason at all, so long as it does not violate existing legal protections or obligations.
  • Fair or not, the rule of at-will employment allows employers to make hiring and termination decisions based even on many types of off-site, non-work-related activities.
  • Employment discrimination law prohibits discrimination against or harassing of other employees on the basis of certain characteristics, including race, sex, religion, color, national origin, age, and disability. This would be especially relevant if someone took their white supremacist messages into the workplace.
  • For private-sector workers, constitutional free speech protections do not apply to their jobs.
  • For public-sector workers, constitutional free speech protections may apply if they are speaking out on matters of public concern in ways that aren’t related to or internally disruptive of their work. (Yes, as noxious as it may be to some of us, it is arguable that a public-sector worker participating in this rally would be protected from termination under this set of legal rules.)
  • For unionized workers, collective bargaining agreements may provide additional substantive and procedural safeguards for wrongful termination, which may cover off-site conduct.
  • A minority of employees have individual employment contracts with so-called morals clauses that may be relevant in these situations. 
  • State law can matter in these situations. Connecticut, for example, has a broad employee free speech law that covers both private and public sector workers. California has a law that protects employees’ right to political expression.
  • If an employee engaged in violent behavior, especially that leading to a criminal conviction, their potential legal protections against wrongful termination would severely diminish.

Taking all these points into consideration, what does this mean for whether employers could fire workers for participating in one of these rallies on their own time? Bottom line is that many private-sector employees could probably be terminated without much risk of liability, but that public-sector workers may be able to raise constitutional free-speech protections. However — and here’s my lawyer’s analytical caution entering the picture — each situation would have to be evaluated individually. There’s no sweeping, catch-all rule that answers this question as yes or no for every situation.

***

August 14 update: This topic has gained relevance due to efforts by certain civil rights/social media activists to “out” white supremacist protesters who are appearing in published photographs of the Charlottesville rally. Apparently the first protester to lose his job is a young man who worked at a fast food eatery, Top Dog, in Berkeley, California, per this piece in the UC-Berkeley student newspaper. 

If readers detect some ambivalence on my part on the use of such tactics, then their perceptions are accurate. I abhor and detest these white supremacists and their worldview. But I also have concerns over how social media can be used to go after anyone in ways that have significant consequences. I think we need to be very careful about determining one’s suitability for employment based on off-site conduct that, while deeply objectionable, may be legal. 

***

Though slightly dated, the legal discussion in my 1998 law review article on the free speech rights of private-sector employees, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace” (Berkeley Journal of Employment and Labor Law), remains largely intact today. You may access it without charge here.

Work, savings, retirement: Generation Jones is getting hammered

If you were born between 1954 and 1965, then you may identify as a member of “Generation Jones,” that large cohort sandwiched between classic Baby Boomers and classic Generation Xers. The thesis is that Gen Jonesers, on average, have had very different life experiences than those of folks in the two iconic groupings. Indeed, with a 1959 birthdate, I am a card-carrying member of Generation Jones, and I have long believed that, on balance, our group is different than the mainstream Boomers with which we are often categorized.

Gen Jonesers now range from their early 50s and early 60s. And currently, this age group is getting hammered by economic conditions and policies, personal financial circumstances, and frequent age discrimination in the workplace.

To some extent, this Generation Jones has been snakebitten by broader events. During the early 1980s, many graduated into a terrible recession that limited entry-level job opportunities. This was also a time when America’s industrial jobs base went into sharp decline (a trend continuing to this day), wages started to flatline (ditto), and employers began eliminating pension plans (ditto again).

Fast forwarding, the Great Recession hit during what should’ve been Gen Jonesers’ strongest earning years, the heart of their 40s and early 50s. Many lost jobs and livelihoods during that time and have struggled to recover. Some have never recovered. Gen Jonesers are now hurtling toward what have been considered traditional retirement years; most are within 10-15 years of that time. But as I have written often on this blog (here, for example), America faces a retirement funding crisis of major proportions.

My own interest in this topic relates to my work on workplace bullying. I’ve witnessed the challenges that face those in middle age who have lost jobs and livelihoods due to bullying, mobbing, and abuse at work. The ongoing specter of age discrimination often undermines their efforts to seek new employment.

These are difficult topics, but they are vitally important, and they should be front and center in our national political and policy debates, even though anyone following the news knows they are not. For those who want to learn and think more, however, I’ll make two suggestions:

First, watch Elizabeth White’s TEDx talk, “Fifty-five, Unemployed, Faking Normal.” It’s an 18-minute reflection on what it means to have lost your job at middle age and to face the financial challenges that can follow. I’ve written about her important work before, and I’m a big fan of her book, Fifty-Five, Unemployed, and Faking Normal: Your Guide to a Better Life (2016). Richard Eisenberg, writing for the Next Avenue blog, previews White’s TEDx talk:

White’s TEDx Talk, filmed earlier this year in Richmond, Va., is a composite of her story and her friends’ — women and men in their 50s who are “faking normal.” By that, White’s talking about people who had good careers and lives until they didn’t. She describes them in the TEDx Talk as people who “entered the uncertain world of formerly and used to be.”

Second, read Elizabeth Olson’s New York Times piece, “Shown the Door, Older Workers Find Bias Hard to Prove,” which explains the legal challenges facing laid off workers who are alleging age discrimination:

Yet, even as the work force has a large number of older employees, one of the principal tools to fight such discrimination, the Age Discrimination in Employment Act — which Congress passed a half-century ago — may not be up to the task, said Laurie A. McCann, a lawyer with AARP Foundation Litigation, which is providing legal counsel to the Wichita plaintiffs.

“Ageism unfortunately remains pervasive in the American work force,” she said. Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.

They were among a total of only 86 workplace discrimination cases litigated in court last year, AARP found. Few cases are taken to court because such complaints are complicated and expensive; it can take a long time to assemble relevant evidence and testimony.

WBI survey: Strong public support for workplace anti-bullying laws

new, scientific Workplace Bullying Institute (WBI) national survey on workplace bullying shows strong public support for workplace anti-bullying legislation.

WBI’s 2017 survey is the latest in a series that includes similar polls in 2014, 2010, and 2007. On the question of support for workplace anti-bullying legislation, survey participants were asked: “Do you support or oppose enactment of a new law that would protect all workers from repeated health-harming abusive mistreatment in addition to protections against illegal discrimination and harassment?” Some 77 percent of respondents said they “strongly support” or “somewhat support” the enactment of such a law. Here are their specific responses:

  • 47% “Strongly support”
  • 30% “Somewhat support”
  • 15% “Not sure”
  • 4% “Somewhat oppose”
  • 4% “Strongly oppose”

It is notable that the survey question itself tracks the language of the Healthy Workplace Bill, model legislation I have authored that provides bullied workers with a legal claim for damages and creates liability-reducing incentives for employers to act preventively and responsively toward bullying behaviors.

Other key survey info

Here are other key results from the 2017 report, as summarized by Dr. Gary Namie:

  • 19% of Americans are bullied, another 19% witness it
  • 61% of Americans are aware of abusive conduct in the workplace
  • 60 million Americans are affected by it
  • 70% of perpetrators are men; 60% of targets are women
  • Hispanics are the most frequently bullied race
  • 61% of bullies are bosses, the majority (63%) operate alone
  • 40% of bullied targets are believed to suffer adverse health effects
  • 29% of targets remain silent about their experiences
  • 71% of employer reactions are harmful to targets
  • 60% of coworker reactions are harmful to targets
  • To stop it, 65% of targets lose their original jobs

The 2017 WBI survey was conducted in conjunction with Zogby Analytics and significantly underwritten by the Minnesota Association of Professional Employees.

Disposable workers

This is hard to fathom, but unfortunately the headline pictured above — “A maid begged for help before falling from a window in Kuwait. Her boss made a video instead.” — tells the heart of the story. Avi Selk reports for the Washington Post:

The floor looks clean in this high-rise apartment, seven stories above Kuwait City traffic. Not a smudge in sight on the picture window. On the other side of the glass, the maid is hanging on by one knuckle, screaming.

“Oh crazy, come here,” a woman says casually in Arabic, holding a camera up to the maid.

“Hold on to me! Hold on to me!” the maid yells.

Instead, the woman steps back. The maid’s grip finally slips, and she lands in a cloud of dust, many stories below.

The maid — an Ethiopian who had been working in the country for several years, according to the Kuwait Times — survived the fall. The videographer, her employer, was arrested last week on a charge of failing to help the worker.

Selk adds that more instances of domestic workers falling off of buildings have been reported. Human rights advocates are sounding alarms about this horrible incident and others against the background of a system of servitude known as kafala, whereby foreign workers surrender basic labor rights in return for work visas.

The spectrum of workplace mistreatment runs from lighter instances of intentional incivility all the way to slavery and torture. This event in Kuwait, and references to the policy of kafala, remind us that forms of abuse tending toward, and falling squarely within, the latter still exist in this world.

Enter therapeutic jurisprudence

These concerns also raise the fundamental importance of bringing dignity at work into therapeutic jurisprudence (“TJ”), a school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of laws, legal processes, and legal institutions.

As close readers of this blog know, I have been active in the TJ movement for many years, to the point of regarding it as my primary lens for examining law and policy. In fact, I’m part of a wonderful group of law teachers, lawyers, and judges who are forming a new international, non-profit organization dedicated to advancing therapeutic jurisprudence on a global scale. We will be launching this new entity at the biennial International Congress on Law and Mental Health, to be held this year in Prague, Czech Republic.

To date, much TJ activity has been concentrated in legal areas such as mental health and disability law, criminal law, dispute resolution and the administration of justice, and family law. Laws and policies relating to work, workers, and workplaces, however, have not received as much attention. Along with other folks dedicated to advancing dignity at work, I look forward to playing an energetic role in changing that state of affairs.

You see, it’s important to remember that individual incidents of worker abuse, including this one in Kuwait, are enabled or validated by policies such as kafala, thus melding the mistreatment with the tacit approval of law. Changing laws does not necessarily change individual behavior, but it creates enforceable norms that can inform people’s decisions about how to treat others.

%d bloggers like this: