New California law directs larger employers to engage in workplace bullying training and education for supervisors

Earlier this week, California Gov. Jerry Brown signed legislation (Assembly Bill No. 2053) requiring employers of 50 or more workers to engage in training and education for supervisors concerning workplace bullying.

The legislation amends an existing California law requiring covered employers to engage in training and education for sexual harassment. These employers are now directed to include “prevention of abusive conduct” in their supervisor training and education programs. The definition of “abusive conduct” draws heavily from versions of the Healthy Workplace Bill, covering:

…conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

The California law does not, however, create a legal claim for workplace bullying. Nevertheless, it is an important step forward and constitutes further recognition of the need for our legal system to respond to workplace bullying. This law follows legislation enacted by Tennessee earlier this year directing a state commission to develop a model workplace anti-bullying policy for the state’s public employers.

I’ll have more to say about these developments in a later post.

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Recycling: Five years of August

Each month I’m reaching into the archives to highlight a piece from that month of each past year. Especially for those of you who missed them the first time around, I hope they provide interesting and useful reading. For each piece I’m including a short excerpt; you may click on the title for the full article.

August 2013: Notes on the workplace anti-bullying movement — “If you’ve been reading this blog for any length of time, you’ve figured out that workplace bullying and related issues of human dignity at work have become focal points of my career. …These experiences have been defining ones, personally and professionally. They also have taught me a lot about the challenges of organizing a movement and building public support for it. I’d like to step back for a brief moment to share some of those insights and observations, centering on the types of people who have been drawn to be a part of this. Concededly, these are fairly broad generalizations, and I apologize in advance to anyone who believes I’m overstating my points. But here goes…”

August 2012: Professional schools as incubators for workplace bullying — “You start with ambitious young people who (1) are used to being heralded as academic stars; (2) do not have a lot of life experience; and (3) tend to be driven, Type A achievers. You then put them in high-pressured educational environments that emphasize technical knowledge and skills and a lot of “left-brain” logical thinking. These degree programs don’t place a lot of emphasis on interpersonal skills and the development of emotional intelligence. You then unleash them unto the world of work. Uh oh.”

August 2011: Hiring decisions, hard times, and personal & institutional integrity — “Employers, managers, and HR folks have a lot of power in an economy where jobs are hard to come by. Sometimes, the hiring decisions they make reveal something of their personal and institutional integrity, or lack thereof.”

August 2010: Can an apology help to prevent and settle employment litigation? — “It would take considerable reworking of the commonly assumed role of an employer’s lawyer to encourage, when appropriate, apology and disclosure as a healthy approach toward resolving employment disputes.   Right now, too many management-side lawyers assist their clients in creating a public fiction: We do no wrong — never, ever.  However, is it possible that a different turn will lead to less litigation, less contentious dispute resolution, and — ultimately — better employee morale?”

August 2009: Bully rats, tasers, and stressNew York Times science reporter Natalie Angier has an interesting piece in today’s edition…about an experiment using lab rats to assess the effects of chronic stress, feedback loops in the brain, and how to reverse the damage.  It’s a good report on a thought-provoking study, but for me it confirmed what has become obvious…”

How headlines mislead: The $4.7 million “workplace bullying case”

Yesterday I received multiple e-mails alerting me to a jury verdict awarding some $4.7 million to an employee in a “workplace bullying case.” In fact, this is the headline that blared from a legal compliance site:

Federal Jury Awards $4.7 Million in Workplace Bullying Case

The accompanying summary by Marjorie Richter says more about the case. Here’s the lede:

An employee of a Brooklyn, New York clothing store was awarded $4.7 million by a federal jury after being repeatedly bullied by a co-worker and ultimately physically attacked. The award was for assault, emotional distress, negligence in the employer’s hiring of the bully and punitive damages.

According to the complaint, the plaintiff, a Yemen-born stock clerk, was bullied by a security guard at the store, who repeatedly called the plaintiff “bin Laden” and used other religious, racial and ethnic slurs throughout the plaintiff’s employment at the store. The security guard also made threatening physical gestures.

She goes on to describe the need for workplace bullying prevention and training, and she links registration information for the site’s online course.

In reality…

The article/sales pitch may give the misleading impression that bullied workers can easily generate winning claims for emotional distress, negligent hiring, and similar causes of action.

In reality, this lawsuit illustrates the huge gap between discriminatory harassment and standard brand workplace bullying.

Although the legal compliance site frames this as a “workplace bullying” case before making a pitch for its training and compliance programs, the underlying claims are grounded in harassment on the basis of protected class status, in this case possibly national origin, religion, and race. If bullying is motivated by discriminatory animus, it may be the basis of a claim for damages under the federal Civil Rights Act and state equivalents. Furthermore, while most tort claims for Intentional Infliction of Emotional Distress in workplace bullying-related situations are dismissed before trial, the ones that survive are typically related to situations involving discriminatory behavior.

However, if the bullying cannot be linked to categories protected by employment discrimination laws, the target often has few, if any, viable legal protections.

In other words, the $4.7 million “workplace bullying case” only highlights the need for workplace anti-bullying laws. The push to enact the Healthy Workplace Bill must continue.

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For a detailed summary of the core legal points made in this post, see my law review article, The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment Protection (Georgetown Law Journal, 2000), the first in-depth examination of the American legal and policy implications of workplace bullying.

New Hampshire veto of workplace bullying bill highlights need for Healthy Workplace Bill approach

New Hampshire Governor Maggie Hassan has vetoed legislation (House Bill 591) that would have provided protections against workplace bullying for state employees. In a veto message explaining the reasons for her decision, Gov. Hassan outlined her concerns about the legislation’s overly broad coverage, suggesting that if it became law, relatively minor interpersonal slights and everyday workplace interactions could easily be labeled as illegal employment practices.

Most significantly, Gov. Hassan criticized the bill’s definition of “abusive conduct” (i.e., workplace bullying):

Among its most onerous provisions, this legislation defines “abusive conduct” in a broad and unworkable manner based on an individual employee’s subjective perception, not on an unbiased objective standard. While I know it was not the intent of its sponsors, this bill, as written, may make the most routine workplace interactions – and the human give-and-take they entail – potential causes of action.

I share many of the Governor’s core concerns. At first glance the New Hampshire bill contains a lot of language similar to the Healthy Workplace Bill (HWB), model anti-bullying legislation I drafted that has served as a template for workplace anti-bullying bills filed across the country. However, the NH bill is substantially different in its structure, substantive provisions, and operation from the HWB in ways that could create a torrent of unnecessary litigation.

Gov. Hassan’s main concern highlights a key distinction between the vetoed New Hampshire bill and the full Healthy Workplace Bill: Under the HWB, in order to establish a legally actionable “abusive work environment,” the employee must show that the “reasonable person” would perceive it to be abusive. In other words, the “unbiased objective standard” (in Gov. Hassan’s words) missing from the New Hampshire bill is a core piece of the Healthy Workplace Bill.

The definition of an “abusive work environment” in the template version of the Healthy Workplace Bill draws heavily from the U.S. Supreme Court’s definition of hostile work environment for sexual harassment under Title VII of the Civil Rights Act of 1964. The HWB has been crafted to be compatible with other workplace protections and to incentivize preventive and responsive employer behaviors toward workplace bullying.

I know there is disappointment and disagreement over this matter in the state capital. While I firmly believe that the HWB approach is the better legislative option, I also tip my hat to the Granite State for now being among the leaders in weighing how to protect workers from this form of interpersonal abuse.

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For the latest version of the Healthy Workplace Bill and an explanation of its key provisions, as well as discussion and analysis of other legal and policy developments concerning workplace bullying, see my 2013 article, “Emerging American Legal Responses to Workplace Bullying,” in the Temple Political & Civil Rights Law Review (link to pdf here).

Can neuroscience give us an accurate lie detector for employment disputes?

What if we had the use of a reliable, scientifically trustworthy lie detector test for determining who is telling the truth in employment disputes and litigation?

It’s possible that the field of neuroscience someday will provide a test for doing so.

The fMRI test

Clay Rawlings and Rob Bencini, writing in the current issue of The Futurist magazine published by the World Future Society, explore potential applications of functional magnetic resonance imaging (fMRI) tests for the purpose of detecting lies in legal proceedings:

Functional magnetic resonance imaging (fMRI)—a technique for measuring and mapping brain activity—allows psychologists to observe the brain as it functions in real time. Two companies, No Lie MRI Inc. and Cephos Corporation, claim that they can use fMRI to determine conclusively whether or not an individual is telling the truth.

…This methodology should be foolproof: You either have a real memory, or you do not. If your answer is based in fantasy rather than memory, it is almost certainly a lie.

…At some point, this technology may replace random groups of 12 jurors as the “finders of fact.” We will know with certainty whether someone is telling the truth.

…If technology can tell us with scientific certainty whether a person is telling the truth, why not place a scanner above the witness stand? As witnesses testify, the court will be able to see in real time whether or not the testimony is true.

Applying the fMRI to employment disputes

I’ve written about how the tools of neuroscience can be used to measure post-traumatic stress disorder. For targets of workplace bullying and harassment, someday this test might be utilized to prove damages due to abusive conduct.

Perhaps the fMRI could play a similarly useful role in assessing truth telling in employment disputes, including those that have led to litigation.

Imagine a test that sorts truth from fiction when allegations of bullying, sexual harassment, and other forms of worker misconduct arise. For targets of these behaviors who have had the exasperating, painful experience of being ignored or regarded dismissively, this could be a way of getting to the heart of the matter.

Caution (lots of it)

But let’s not get carried away. Even putting aside expenses, we’re a long way from proclaiming the fMRI test as being sufficiently foolproof for routine use.

We have an excellent example of why caution is advisable: The most commonly recognized electronic “lie detector test” is the polygraph machine, which has a long history of usage in law enforcement settings. Furthermore, until the late 1980s, it was a popular pre-employment screening mechanism for prospective employees.

However, polygraph evidence has never been admissible in criminal proceedings, due to ongoing concerns about its reliability. Furthermore, after the Congressional Office of Technology Assessment raised severe doubts about the polygraph’s reliability as employee screening tool, Congress banned this use through the Employee Polygraph Protection Act of 1988.

Therefore, we should regard the fMRI, or any other scientific test, with reasonable skepticism. Can it detect the lies of a psychopath? Will it falsely identify honest statements as being untrue? These are among the questions that must be answered.

For targets of workplace abuse, a genuine lie detector test may seem like a panacea. We’re not there yet, but perhaps someday scientific technology will deliver a solution.

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Related posts

Brain science and the workplace: Neuroscience and neuroplasticity (2011)

In recovering from adversity, past adversity can fuel our resilience (2011)

Do organizations suppress our empathy? (2010)

Understanding the bullied brain (2010)

Bully Rats, Tasers, and Stress (2009)

Why concentrated power at work is bad (2009)

Roundup on workplace bullying and anti-bullying legislation

Workplace bullying and the Healthy Workplace Bill continue to attract interest from the media and professional associations. Here are five pieces that exemplify this trend:

Lexology.com on workplace bullying legislation

In a piece posted earlier this year by Lexology.com and the Association of Corporate Counsel, employment attorney Stephanie K. Rawitt assesses the implications of pending workplace bullying legislation:

The US is actually the last of the western democracies to consider laws forbidding workplace bullying.

…Since 2003, 25 states have introduced workplace bullying legislation that would allow workers to sue for harassment, without requiring a showing of discrimination. The proposed legislation was born in 2001 by Suffolk University Professor of Law David Yamada, who drafted the text of the Healthy Workplace Bill (HWB).

…Enactment of anti-bullying legislation could very well be one of the biggest things to happen in the world of employment law since the passage of Title VII given its wide-spread applicability to all employees. If anti-bullying laws are to become a reality, state lawmakers will need to carefully craft the statute in an attempt to both protect employees from harmful workplace bullying while also shielding employers from an avalanche of frivolous litigation.

Wall Street Journal on Tennessee public sector bullying law

The Lexology.com piece preceded Tennessee’s enactment of a workplace bullying law that directs a state commission to develop a model anti-bullying policy that can insulate the state’s employers from liability. Adam Rubenfire, writing for the Wall Street Journal, solicited responses to the Tennessee law:

Tennessee approved the Healthy Workplace Act on May 22, a law designed to curb verbal abuse at work by making public-sector employers immune to bullying-related lawsuits if they adopt a policy that complies with the law.

…Dr. [Gary] Namie, a social psychologist, said the Tennessee law doesn’t go far enough.

…(T)he signed law applies only to public-sector employers, and administrators aren’t required to follow guidelines that the law ordered a state commission to draft by March 2015. Instead, they’re incentivized to do so in exchange for immunity from potential lawsuits.

SHRM on global approaches to workplace bullying laws

Putting workplace bullying and the law in an international context, Ellen Pinkos Cobb, a Fellow of the U.S. Academy on Workplace Bullying, Mobbing, and Abuse created by the Workplace Bullying Institute and the New Workplace Institute, contributed a piece to the Society for Human Resource Management examining the enactment of workplace anti-bullying legislation in other nations:

The legal picture looks different in other parts of the world. Under workplace health and safety legislation, employers in most countries have a duty of care to provide a safe work environment for employees.

…Whether referred to as moral harassment, psychological violence or mobbing, many European countries have enacted laws prohibiting this conduct in the workplace, including Denmark, Finland, France, the Netherlands, Norway, Serbia and Sweden.

…Canadian provinces such as Ontario have also imposed obligations on employers to protect workers from psychological harassment in the workplace.

…With Australia’s introduction of the anti-bullying jurisdiction of the Fair Work Commission on Jan. 1, 2014, a worker in Australia who reasonably believes he or she has been bullied at work may apply to the Fair Work Commission and, if an investigation determines that workplace bullying has occurred, be entitled to a remedy.

Forbes.com on VitalSmarts workplace bullying study

Naomi Shaven, writing for Forbes.com, references David Maxwell, management consultant and co-founder of VitalSmarts, on the contemporary look of workplace bullying and a new survey done by his firm:

Over the years, he developed a particular interest in workplace bullying – where it was happening, how it was changing, how it affected productivity and efficiency in the office – and this morning, VitalSmarts released a new study on the phenomenon by Maxfield and coauthor Joseph Grenny.

Researchers looked at the responses of 2,283 people, and the results surprised even Maxfield: “96% of respondents say they have experienced workplace bullying.” “89% of those bullies have been at it for more than a year.” “54% have been bullying for more than five years.” “80% of bullies affect five or more people.”

…All too often it is the industry itself that inadvertently fosters bullying. “Silicon Valley has masters of sarcasm and irony,” Maxfield says, observing that cruel jokes can feel like a punch in the gut. He also cited the health care industry and the “intimidating physician” problem.

The Guardian on workplace bullying

Jana Kasperkevic, in a piece for The Guardian, reports on the VitalSmarts study and efforts to enact Healthy Workplace Bill, while observing this about workplace bullying:

Those studies and surveys, when taken together, cast light on the surprising dynamics of bullying – the belittling, reputational attacks, gossip and elbowing that make many modern workplaces unbearable.

Here’s what the studies show: bullying is not random. It has reasons in the bully’s mind, even if those reasons are unfair, skewed, and informed by their personal insecurities. That bodes well for handling bullies, in the workplace or elsewhere, because it means you can address the root causes – and it’s absolutely essential to stand up for yourself, because bullies tend to prey on those they perceive as weak, and they have lasting power in the office. They tend to drive better workers away to remain the last man (or woman) standing, and they tend to turn on not just one person, but several at a time.

Visiting Louisville to talk about workplace bullying and the law

WARNS-savethedate-500

I was fortunate to make my first-ever visit to Louisville, Kentucky, to speak at the annual Warns-Render Labor and Employment Law Institute, a major regional continuing legal education program sponsored by the University of Louisville’s Brandeis School of Law.

I gave an overview of workplace bullying and attendant legal issues. I was delighted to be joined by Indiana attorney Kevin Betz, lead counsel on the Raess v. Doescher litigation that culminated in a 2008 Indiana Supreme Court decision and helped to bring wide attention to legal issues surrounding workplace bullying. Here’s what I wrote about the case in 2009:

In the 2008 case of Raess v. Doescher, the Indiana Supreme Court affirmed a jury award of $325,000 for assault to a perfusionist (operator of “a heart-lung machine during open heart surgeries”) who brought an action against a surgeon for an altercation at a hospital. The claim was based on the following factual allegations:

(T)he defendant, angry at the plaintiff about reports to the hospital administration about the defendant’s treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and puts his hands up, believing that the defendant was going to hit him…. Then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the room, momentarily stopping to declare to the plaintiff, “you’re finished, you’re history.”

The Court’s decision was based largely on procedural and evidentiary issues. It rejected a challenge to expert testimony about workplace bullying rendered by Dr. Gary Namie for the plaintiff, finding there was nothing in the record to suggest that Namie’s testimony was inadmissible, and ultimately holding that the issue was not properly preserved for appellate review. It also held that the trial court “did not abuse its discretion in refusing” the defendant’s tendered jury instruction concerning workplace bullying.

The legal impact of Raess v. Doescher with regard to workplace bullying is modest because of the limited scope of the Indiana Supreme Court’s holdings. It created no new legal claim, and did not expand substantive tort law in a way that might pave the way for future plaintiffs. However, the decision has received national attention because the media characterized it as a successful workplace bullying claim. It has been cited as evidence of a growing liability risk that counsels employers to take workplace bullying more seriously.

Continuing legal education programs are a useful way to introduce legal issues relevant to workplace bullying to practicing attorneys, and this was an enjoyable, albeit all-to-brief(!) opportunity to do so. Many thanks to the folks at the University of Louisville, especially professor Ariana Levinson, ombudsman Tony Belak, conference chair Don Meade, and administrator Margaret Bratcher for facilitating my visit and their kind hospitality.

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