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:

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Written Testimony in Support of Senate No. 1013,

“An Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status”

 

(a/k/a “Healthy Workplace Bill”)

 

David C. Yamada

Professor of Law, Suffolk University Law School

Author, Healthy Workplace Bill 

Dear Members of the General Court:

As the author of the original language contained in Senate No. 1013, workplace anti-bullying legislation informally known as the Healthy Workplace Bill, I respectfully submit this testimony to summarize what we know about workplace bullying, the need for legal reform, and key features of the legislation. This is our fourth full session in bringing this bill to the Legislature, and we strongly believe that it should become law.

Workplace Bullying is a Form of Targeted, Interpersonal Abuse

Workplace bullying is the intentional, repeated, health-harming mistreatment of one employee by one or more employees, by verbal and non-verbal means. Individual bullying behaviors come in overt and covert varieties, such as

  • false accusations of mistakes and errors;
  • yelling, shouting, and screaming;
  • exclusion, ostracism and the “silent treatment”;
  • withholding resources and information necessary to the job;
  • behind-the-back sabotage and defamation;
  • use of put-downs, insults, and excessively harsh criticism;
  • hostile glares and other intimidating non-verbal behaviors;
  • unreasonably heavy work demands designed to ensure failure.

Workplace bullying is not:

  • everyday disagreements and “dust ups” in the office;
  • someone having a bad day and losing his/her temper;
  • reasonable instructions, directives, and employee reviews.

In the United States, workplace bullying is common, often top-down, and typically does not end well for those targeted. A 2014 national public opinion survey sponsored by the Workplace Bullying Institute and conducted by Zogby pollsters found that:

  • 7% of respondents are currently experiencing workplace bullying, and another 20% of respondents previously have experienced workplace bullying, using a definition that tracks the language of the Healthy Workplace Bill.
  • 56% of bullying is committed by supervisors; 33% by co-workers; 11% by subordinates.
  • The most common “resolution” is that the target leaves the job: Quit or forced out (48%); terminated (13%); transferred (13%).

Human and Organizational Costs

Workplace bullying can inflict health-impairing physical and psychological harm on targeted employees, including:

  • stress disorders of all types
  • clinical depression
  • high blood pressure
  • cardiovascular disease
  • impaired immune systems
  • suicidal ideation
  • symptoms consistent with Post Traumatic Stress Disorder
  • severe residual effects on family and personal relationships
  • life-altering decisions about whether to stay in or leave a job.

Workplace bullying is very costly to employers. Organizations that play host to workplace bullying may suffer a variety of negative effects, including:

  • decline in productivity
  • reduction in morale
  • fear and mistrust permeating the workplace
  • greater attrition and “presenteeism” (i.e., workers going through the motions)
  • higher health insurance and benefit costs
  • elevated risks of workplace violence

The Need for Legal Reform

Current Law Does Not Protect Bullying Targets or Encourage Employer Prevention

  • Most instances of severe workplace bullying, especially those unrelated to protected class status (sex, race, disability, etc.) and whistleblower retaliation fall between the cracks of existing employment law.
  • Targets of severe workplace bullying are repeatedly told by plaintiffs’ attorneys that they have no legal recourse.
  • In the 2014 Workplace Bullying Institute national survey, 63% of respondents “strongly support” and 30% of respondents “somewhat support” workplace bullying laws.

Main Features of Senate No. 1013

  • Provides workers with a legal claim for severe bullying behavior, but with a high threshold: They must establish that the behavior was intentionally abusive and caused tangible physical and/or psychological harm.
  • Imposes liability on both individual aggressors and employers, but allows employers to minimize liability by preventing and responding to bullying situations.
  • Includes provisions that discourage weak or frivolous claims.
  • Claims brought in court; no agency involvement.

Debunking Myths about the Healthy Workplace Bill

  1. “Existing harassment law is sufficient to protect bullying targets.” — This is untrue. Existing harassment law protects only those individuals who can prove that the harassment is due to their protected class membership, such as sex, race, or age.
  2. “Existing tort (personal injury) and workers’ compensation laws are sufficient to protect and compensate bullying targets.” — This is untrue. In Massachusetts, the Supreme Judicial Court has held that under exclusivity provision of the state’s workers’ compensation law, workers may not sue their employers for intentional infliction of emotional distress (IIED) and many other tort actions. Furthermore, workers’ compensation benefits are very difficult to recover for so-called “mental-mental” injuries, i.e., claims for psychological impairment based upon psychological mistreatment or harassment at work.
  3. “The HWB will open floodgates of litigation.” — Of course there will be lawsuits under the HWB; it would not be doing its job if workers did not bring claims under it. However, after an initial surge of litigation, the number of claims will moderate considerably once lawyers and the courts recognize the fairly high threshold for recovery. In fact, the HWB has been criticized from sectors of the left as setting too high a standard for recovery. Furthermore, Under the HWB, an employer may avoid liability by showing that it exercised reasonable care to prevent and correct promptly any bullying behaviors and that the employee unreasonably failed to take advantage of these remedial measures. This is practically identical to the liability-reducing incentives contained in current federal law covering sexual harassment.
  4. “The language of the Healthy Workplace Bill is too vague.” — Not if you consider the bill in its entirety. The HWB draws its definition of an abusive work environment from the U.S. Supreme Court’s definition of a hostile work environment for sexual harassment.
  5. “The HWB takes away traditional management rights.” — This is untrue. The HWB takes away only the current right to treat someone abusively. It preserves management rights by providing an affirmative defense where the complaint is based on upon (1) an adverse employment action (such as a termination) reasonably made for poor performance, misconduct, or economic necessity; or (2) a reasonable performance evaluation; and (3) where the complaint is based on the employer’s reasonable investigation about potentially illegal or unethical activity.

An Emerging Law Reform Movement on Behalf of Human Dignity at Work

  • Healthy Workplace Bill (HWB) and related bills in 30 states — Since 2003, the Healthy Workplace Bill and related workplace bullying legislation have been introduced in 30 states.
  • Massachusetts – In the 2011-12 and 2015-16 sessions, the HWB advanced to Third Reading in the House; in the 2013-14 session, the HWB advanced to Second Reading.
  • Illinois — In March 2010, a version of the HWB covering public employees was approved by the Illinois State Senate by a 35-17 vote.
  • New York — In May 2010, the New York State Senate passed the HWB by a 45-16 vote that included strong bipartisan support.
  • California – In 2014, California enacted a law requiring larger employers to engage in supervisor training and education concerning workplace bullying.
  • Tennessee – In 2014, Tennessee enacted a law directing a state commission to develop a model workplace bullying policy for public employers.
  • Other nations — Australia, Canada, Great Britain, Ireland, and Sweden are among the growing number of nations that already have enacted laws and regulations covering workplace bullying.

Conclusion

If I can be of any assistance toward understanding the phenomenon of workplace bullying and the underlying legal and policy issues, as well as specific provisions contained in the Healthy Workplace Bill, please contact me.

MA State House hearing for Healthy Workplace Bill

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

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

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

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

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

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

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

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

Healthy Workplace Bill filed for 2017-18 Massachusetts legislative session

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

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

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

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

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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.

Passing workplace anti-bullying laws during the Age of Trump

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

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

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

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

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

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

Challenging conventional wisdom

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

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

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

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

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

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

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

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

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

Other supporters: The national HWB campaign page is here.

Freedom from Workplace Bullies Week: October 16-22, 2016

fw-2016

The Workplace Bullying Institute is once again inviting us to participate in the annual Freedom From Workplace Bullies Week, October 16-22:

Bullying is a systematic campaign of interpersonal destruction that jeopardizes your health, your career, the job you once loved. Bullying is a non-physical, non-homicidal form of violence. Because it is abusive it causes both emotional and stress-related physical harm.

Freedom from Bullies Week is a chance to break through the shame and silence surrounding bullying. It is a week to be daring and bold.

The power of workplace bullying is its ability to stay hidden in plain view. Make every workplace safe and take a stand against workplace bullying!

Here in Massachusetts, we’ve marked this week in different ways, including a small group workshop and a larger public forum. Others have done a major news conference and obtained Freedom Week proclamations from municipalities and counties, among other activities. I’ve also used this blog to spotlight the work of affiliated scholars, activists, and writers and to highlight ways in which people can stop workplace bullying

This year, my own efforts will be more task-oriented. As I’ve mentioned earlier, Dr. Maureen Duffy, one of the leading authorities on mobbing behaviors, invited me to join her as co-editor on an exciting book project on workplace bullying and mobbing. This two-volume book set will feature a comprehensive, multidisciplinary collection of chapters by leading and emerging U.S. experts on bullying and mobbing at work, with a focus on American employment relations. We’ll be hip deep in this work during October, as we strive to get the full manuscript to our publisher and work toward a 2017 publication date.

In addition, I’m taking an early look at preparing for the next round of public education activities on behalf of the Healthy Workplace Bill. We’ve made steady progress here in Massachusetts, but in order to turn the bill into a law, we need to take our efforts up to the next level for the 2017-18 legislative session. There’s very little substitute for that needed work.

It’s good that we have Freedom Week to shine a light on workplace bullying and the need to eradicate it. And the fact that we observe it every year is a reminder that we’re doing a marathon, not a sprint.

Workshopping workplace dignity

nwi.dignityworkshop.2016

Yesterday and today, I had the deep privilege of facilitating a small group workshop on dignity at work, hosted at Suffolk University Law School.

Although I often feature and highlight speakers and participants from programs I host, because of the personal nature of some of our discussions, I will refrain from doing so here. Suffice it to say, however, that the ten participants — drawn largely from the Boston area — made for an extraordinary group, individually and collectively. Here are among the topics we discussed:

  • Framing dignity in relation to the experience of work;
  • Examining workplace dignity in the context of a specific employment sector, in this case, health care;
  • Discussing how participants are addressing workplace dignity issues in their own lives, while getting feedback from the group; and,
  • Looking at future advocacy efforts for workplace anti-bullying legislation.

When it came to describing their own workplace dignity activities, many of the participants offered stories of their own life experiences. It was a testament to the supportive atmosphere of the workshop that people felt sufficiently confident and safe to share their stories in this manner.

For me personally, here are among the lessons learned and reinforced by this workshop experience:

  • There is power in creating intentional communities of good people devoted to positive social and individual change.
  • With the right mix of people, gatherings such as this one can be both healing on an individual level and constructive on a social change level.
  • When you bring together folks from different backgrounds, professions, and areas of expertise, the exchange of experiences, ideas, and information can generate new insights and understandings.

The workshop was a trial balloon of sorts, with a loose structure that relied on the participants to provide the content — without a PowerPoint slide in sight! I realize that not every such program will be so rewarding, but I saw and heard more than enough to be able to proclaim the event a success, with designs on working with others to expand this circle.

The future of the Healthy Workplace Bill in Massachusetts

Massachusetts State House: We'll be back (photo: DY)

Massachusetts State House: We’ll be back (photo: DY)

The end of the formal 2015-16 legislative session in Massachusetts left the anti-bullying Healthy Workplace Bill (House No. 1771) languishing at a procedural stage known as Third Reading, meaning it was eligible to be brought before the full House of Representatives for a floor vote. Moving to this significant next step, however, required the approval of House leadership, and they opted not to do so.

It wasn’t just us; many bills advance to Third Reading and stay there. Nevertheless, it was a somewhat frustrating conclusion to a session that saw the HWB move to Third Reading about a year ago, reflecting the considerable amount of support that had been generated for it within the State House.

As I’ve reported on this blog (here, here, and here), we made valiant efforts to make our case for advancing the HWB during the final months of the session. With 58 legislative sponsors and co-sponsors, and a growing number of citizen advocates reaching out to their Representatives and Senators urging their support, we thought we had a chance.

But such are the realities of legislative advocacy. It can be a long, hard slog, requiring what I call a sort of restless patience. On that point, here’s a lesson in perseverance: The legislature did pass a strong fair pay law that will help to reduce gender inequities in compensation. It is being heralded as one of the strongest equal pay laws in the nation. As reported in the Boston Globe, the origins of this legislation date back to 1998. 

I believe that we will see the Healthy Workplace Bill become law sooner than later. This was our third full session in the Massachusetts legislature, and we had a good run. We will be making plans this fall for stepped-up advocacy efforts during the 2017-18 session. We’re not going away, and we will succeed.

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Finally, I would be remiss if I did not acknowledge, with our profound thanks, the retirement of our stalwart lead sponsor in the House, Representative Ellen Story (D-Amherst). This smart, principled, and caring legislator has long served her district and the citizens of Massachusetts with great humanity and distinction. Ellen has been with us on this cause longer than anyone else in the State House, and when the Healthy Workplace Bill becomes law, I hope she’ll be there to celebrate with us and to share well-deserved credit for that success.

Rep. Ellen Story (photo: ellenstoryma.com)

Rep. Ellen Story (photo: ellenstoryma.com)

 

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