Workplace Bullying: New Rules Heading Your Way? (CA, NY, NJ, US Virgin Islands)

workplace bullying

Workplace bullying legislation backed by The Healthy Workplace Campaign has been introduced in 26 states. Legislation is currently pending in New York, California, New Jersey, and the US Virgin Islands.

The language of each bill varies somewhat but the core language is fairly consistent based on a model bill provided by Senate Bill 3863 in New York begins by stating some of the reasons the state feels the need to provide protection against workplace bullying to employees.Workplace bullying

“The Legislature hereby finds that the social and economic well-being of the state is dependent upon healthy and productive employees. At least one-third of all employees directly experience health endangering workplace bullying, abuse, and harassment during their working lives. Such form of mistreatment is four times more prevalent than sexual harassment alone. Workplace bullying, mobbing, and harassment can inflict serious harm upon targeted employees including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder.”

After stating that existing laws do not provide adequate protection and recompense for individuals who cannot prove that the abuse falls under a protected class, the language goes on to explain:

“The purpose of this article shall be to provide legal redress for employees who have been harmed psychologically, physically, or economically by deliberate exposure to abusive work environments and to provide legal incentives for employers to prevent and respond to abusive mistreatment of employees at work.”

Q – What is “abusive conduct”?

A – Acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct, including but not limited to:

  • Repeated verbal abuse such as:
  • The use of derogatory remarks, insults, and epithets
  • Verbal, Non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature
  • The sabotage or undermining of an employee’s work performance

If an employee’s known psychological or physical illness or disability is exploited, it shall be considered an aggravating factor (read: stiffer potential legal liability).

A single act will not normal constitute abusive conduct unless it is especially severe an egregious.

An “abusive work environment” is when an employer or one or more of its employees intends to cause pain or distress to an employee, and subjects that employee to workplace bullying that causes harm.

Bullied employees are granted protection against retaliation or “adverse employment action” under the proposed legislation in New York.

Employee’s whose request for assistance with bullying behaviors in the workplace are not addressed will be considered constructively discharged if they have reported the conduct and appropriate actions were not taken.

The potential penalties to an employer are significant and depending on the unique circumstances may include any relief the court deems appropriate including, but not limited to, reinstatement, removal of the offending party from the work environment, reimbursement for lost wages, front pay, medical expenses, compensation for pain and suffering. It concludes by stating that remedies under this law would not preclude remedies available under other laws. So, for example, if someone is a member of a protected class, he or she might be able to seek damages under existing legislation and this new legislation, if it passes.

Although the proposed legislation has not yet been made into law, I believe it is one egregious and well publicized bullying situation away from being passed in a similar form in many states. The bill is being pushed by a grassroots effort that could quickly grow as the result of social media.

The term, “going postal” originated when workplace bullying hit a crisis point. The documentary, Murder by Proxy, details what led to the Royal Oak Post Office murders in 1991. If a similar situation were to occur today, I believe the grassroots efforts would reach a crescendo and states would quickly pass legislation in response to the public outcries. If this were to occur when elections were on the horizon, employers could find themselves subject to anti-bullying legislation almost before they’ve had time to read the rules, much less take steps to ensure compliance and to mitigate their risks.

Murder is the number one cause of workplace deaths for women.

But workplace bullying does not have to near the level of murder before the employer is liable for significant damages.

Today, Google returns eleven million results for the search term workplace bullying. The Huffington Post has run multiple articles on workplace bullying during the past few years. As awareness grows, the likelihood that an employee will complain about mistreatment increases. That is a good thing because that mistreatment has numerous negative effects on the organization. Productivity, worker health, creativity, engagement, and turnover are all negatively effected when workplace bullying is occurring. Being aware of it is important to the health of the organization. But, you have to be prepared to act on what you know because the potential an employee will file suit and win increases with your awareness and with the employee awareness that the states are recognizing the negative impacts on the employee.

We have moved to a culture that values collaboration and does not tolerate the mistreatment of the employee in the ways that were once considered acceptable. If your organization’s culture is not keeping pace with cultural change it is only a matter of time before it pays a price. That price may be loss of your best talent to a more advanced organization or a lawsuit that could have devastating effects on your company’s future.

Harassed Employees Can Get Help Now

The US Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) already provides a requirement that employers provide a safe work environment. OSHA provides a hotline and a form for employees to request assistance by calling 1-800-321-OSHA (6742) or by printing the complaint form and mailing or faxing it to your local OSHA area office. Complaints that are signed by an employee are more likely to result in an inspection.

OSHA provides additional information for both employers and employees.

Note: Employees who observe harassment (but are not victims) should not stand by and do nothing. Standing by and allowing bullying could lead to the loss of your job–either because you did not act or communicate what you observed or because your company has to let people go or close its doors when it is hit with a valid complaint and resultant penalties.

International Workplace Bullying Laws

Sweden passed their Victimisation at Work act in 1994, almost twenty years ago. Great Britain has also passed legislation, with their Protection from Harassment Act passed in 2001. Canada, France, Australia, and Iceland also have legislation in place.

Follow me to see the update when I post the second and third posts in this series. I will provide steps the employer can take to reduce workplace bullying in their organization and afford some protection against potential claims and the disruption that can occur when employees are harassed. I will also provide some background on how individuals (both bullies and the victim) may experience these situations and warning signs.

Contact us to learn about how we can help you reduce workplace bullying.