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.

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.

A talk on advancing dignity in our workplaces

For those of you who would like to contemplate the big picture of why we need to inject the value of human dignity into our workplaces, you’re invited to watch this 40-minute talk that I gave at the 2014 annual workshop of Human Dignity and Humiliation Studies (HumanDHS) in New York City. It was part of a public program on “Work That Dignifies the Lives of All People,” [Note: You may have to “rewind” the YouTube video to the beginning, as some for some weird reason, the talk sometimes starts at around the 10 minute mark!]

The talk gave me a chance to discuss many topics that I’ve raised here on this blog, such as workplace bullying, the low-wage economy, and the ravages of globalization. I then tied them together under the overall rubric of worker dignity.

Next I asked participants to consider our respective roles in promoting worker dignity. At the very least, I suggested, we can do our best to practice the Golden Rule at work, treating others as we would have them treat us. That’s not always easy, but it’s an especially good starting place.

This morning I was poking around the HumanDHS website and to my surprise found the video! I hadn’t posted it before, but I’m pleased to share it with you now. Introducing me is HumanDHS director Linda Hartling. As I mentioned in my last post, I just finished participating in this year’s HumanDHS workshop, and it once again was a tremendously rewarding experience.

Workplace bullying, psychological trauma, and the challenge of storytelling

(image courtesy of freepik.com)

(image courtesy of freepik.com)

Why is it that some targets of severe workplace bullying and mobbing have difficulty telling or jotting down their stories in a straightforward, chronological manner? And why do they often launch into what sounds like a War and Peace version of their story, when all that’s needed (for now) is the quick elevator speech?

It can make for a long, rambling account, laden with emotion.

We should not blame this on the target. Work abuse situations are often complex and hard to summarize. Equally significant, the effects of psychological trauma may have a lot to do with the “word salad” narrative.

I’m currently preparing a couple of short talks on how emerging insights from neuroscience inform our understanding of workplace bullying and mobbing, along with accompanying challenges that may confront targets who are trying to harness legal protections or secure employee benefits such as workers’ compensation.

In The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma (2014) (which I praised here), pioneering trauma expert Dr. Bessel van der Kolk explains the latest research on how traumatic experiences may impact the brain, including sharp cognitive impairments that undermine an individual’s ability to present information in an ordered manner. Put simply, an individual dealing with psychological trauma may be able to share emotions and impressions about the experience, while being unable to tell the essential story behind it.

I have been interacting with targets of severe workplace bullying and mobbing behaviors for some 18 years. I have witnessed, over and again, how some individuals encounter great difficulty explaining specific timelines and events. Many of them tell me that they are experiencing symptoms consistent with Post Traumatic Stress Disorder.

The effects of psychological trauma relate directly to legal advocacy supporting targets of bullying, mobbing, and harassment. Effective legal advocacy is built around a story of what happened. Where legal representation is involved, the process of developing this story starts from the very first meeting between attorney and client. What happens when the experience of psychological trauma makes it difficult for a lawyer and client to build a coherent understanding of a prospective legal case or claim for benefits? How can an individual’s wrought emotional state make it difficult to put together a basic chronology and description of events related to a legal dispute and the resulting harm, including pain & suffering and emotional distress?

I now understand how insights from neuroscience help to explain why some individuals face such difficulties in providing coherent narratives of their abusive work experiences. My forthcoming presentations will present my initial ideas for further research and writing on this topic.

***

Related post

Stories can drive change, but workplace bullying stories often defy quick summaries (2016)

Challenges posed by the gig economy are hardly new

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The Fall issue of Yes! magazine devotes a collection of articles to the so-called “gig economy”:

Four out of 10 Americans work outside of the traditional 9-to-5, a rate that is growing fast. For workers, this “gig” work can feel both empowering and precarious. This issue looks at how we can bring out the best of the gig economy, but also protect workers. From cooperatives and online communities to “portable” work benefits, we can make the gig economy work for us.

You’ll find a few pieces from the issue posted online, but for the complete package you’ll want to obtain a hard copy. Yes! prides itself on addressing economic, social, and human rights issues with a solution-oriented journalistic approach, and you’ll find that theme running throughout its examination of the work world of freelancers and independent contractors. It’s worth picking up if this topic interests you.

The gig economy aka the contingent workforce

Although the trendy term gig economy is of more recent vintage, the challenges facing those engaged in contractor, part-time, and short-time work have been with us for some time. For several decades, this group of workers has been referred to as the “contingent workforce.”

In 1994, a blue-ribbon federal commission, the Dunlop Commission on the Future of Worker-Management Relations, released a much anticipated report that examined, among other things, how workers in the contingent workforce fared under existing employment statutes. Among the report’s key findings was that the legally defined line between “employee” versus “independent contractor” played a significant role in determining who is covered by federal employment laws, such as anti-discrimination and minimum wage protections. Those determined to be contractors usually fell outside the reach of these protective laws.

The contingent workforce has been the subject of much attention since then. For example, back in 1997, pioneering workers’ rights attorney and Lewis Maltby and I co-authored a law review article, “Beyond ‘Economic Realities’: The Case for Amending Federal Employment Discrimination Laws to Include Independent Contractors” (Boston College Law Review). The piece continues to be cited in scholarly articles today.

Closer to the trenches, the Freelancers Union provides policy advocacy, continuing education, and services in support of independent workers.

I would add the whole realm of internships and unpaid interns to this discussion as well.

In sum, whether we’re calling it the gig economy or the contingent workforce, the challenges of providing good work with decent pay and benefits to those whose work arrangements do not fit within the 9-to-5 standard (to the extent that it’s a standard at all) remain. It’s something to keep on our radar screens as we head into this Labor Day weekend.

“The right to be let alone”

privacy

In 1890, the Harvard Law Review published a seminal article by attorneys Samuel Warren and Louis Brandeis — “The Right to Privacy” — asserting that American law must recognize a right to privacy grounded in tort (personal injury) law. Paying primary attention to the growing ability of the press and modern communications technologies to delve into and make public the personal lives of private citizens, they reasoned that invasions of privacy now subjected individuals to “mental pain and distress, far greater than could be inflicted by mere bodily injury.” Accordingly, “(t)houghts, emotions, and sensations demanded legal recognition,” which should be in the form of “the right to be let alone.”

The right to be let alone. In 1890, attorneys Warren and Brandeis weren’t thinking about the workplace when they invoked that phrase. However, their words capture a big piece of what should constitute the experience of work. This includes freedom from disabling bullying and mobbing.

While we’ve seen strides in the evolution of privacy laws since the publication of “The Right of Privacy,” countless numbers of workers who are subjected to severe bullying at work do not enjoy a right to be let alone. This is among the many reasons why I will continue to engage in public education work concerning the need for the anti-bullying Healthy Workplace Bill and similar legal protections.

***

This post was adapted from my 2009 law review article, “Human Dignity and American Employment Law” (University of Richmond Law Review).

Coming in 2017: An organization to advance therapeutic jurisprudence

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Regular readers of this blog may know that I am associated with therapeutic jurisprudence (TJ), a school of legal philosophy and practice that “concentrates on the law’s impact on emotional life and psychological well-being.” For some 25 years, TJ adherents have been creating a global network of scholars, practitioners, judges, and students. My own attraction to TJ arose out of my work on workplace bullying and my broader commitment to creating systems of employment law that embrace human dignity. TJ, I realized, was a natural match for those interests.

In fact, I am something of a full-on convert. I now believe that our legal system must, as a primary objective, embrace psychologically healthy outcomes in legal proceedings and transactions, while honoring other important political and economic concerns and core notions of rights and responsibilities.

Accordingly, I am working closely with a group of TJ-affiliated professors, judges, and lawyers to create an international, non-profit membership society that will build the therapeutic jurisprudence community and expand TJ’s scope and influence. We are looking at a 2017 organizational launch. Here’s a passage from a piece describing this effort that we just posted to the Therapeutic Jurisprudence in the Mainstream blog:

For over a quarter of a century, the growing therapeutic jurisprudence movement has existed as an informal, multidisciplinary community of scholars, practitioners, judges, and students. We are now ready to take things to the next level.

Plans are underway to create a new, international, learned society dedicated to TJ. This non-profit organization will consolidate many existing TJ activities, support new TJ initiatives and programs, and serve as a virtual gathering place for those interested in advancing TJ as an important school of legal philosophy and practice.

The new TJ society will be a lean operation, built on modest membership fees and a simple organizational structure, with its eyes trained on facilitating and supporting good works rather than getting overly caught up in internal machinations.

Many details have yet to be settled, and many individuals have yet to be contacted. However, the TJ society will hold its opening event at the July 2017 Congress of the International Academy of Law and Mental Health, to be held in Prague. This will include a substantial, participatory roundtable discussion about initial plans for the organization, followed by a luncheon for those who would like to commemorate this very promising new venture.

This is a very exciting development, and during the coming months I will be sharing occasional updates about this initiative.

***

Related posts

Here are three previous blog posts about therapeutic jurisprudence:

Can a quirky band of law professors, lawyers, and judges transform the law and legal profession? (2015)

A view from Vienna: New wine and new bottles for the practice and substance of law (2015)

Visioning law and legal systems through a psychologically healthy lens (2014)

Law review articles

I’ve written several law review articles that incorporate insights from TJ, and you may freely download pdf copies by clicking the links:

Intellectual Activism and the Practice of Public Interest LawSouthern California Review of Law and Social Justice (2016)

Therapeutic Jurisprudence and the Practice of Legal Scholarship – University of Memphis Law Review (2010)

Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the Workplace — Florida Coastal Law Review (2010)

Human Dignity and American Employment Law – University of Richmond Law Review (2009)

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