Tuesday, February 28, 2012

Workplace Bullying Legislation - Really??

I'm going to Hawaii next week, ostensibly for a vacation, but perhaps there's purpose to my visit outside of rest, relaxation and surfing in eighty degree water.

A bill has been introduced into the Hawaii Senate making "workplace bullying" by public employees a safety violation and making aggrieved employees eligible for workers’ compensation benefits tied to emotional distress.

SB 2487, would give public employees who are victims of abusive conduct a course of action for emotional distress against another employee who is claimed to have made the abusive conduct. The employer would be “vicariously liable” for the acts of the bullying employee and subject to a penalty of up to $25,000.
Additionally, the bill would give abused workers the right to sue for emotional distress an employer whose workplace is an abusive work environment or who directly commits abusive conduct.

An employee would also be allowed to accept workers’ compensation benefits for emotional distress rather than bringing a legal action against the employer or co-worker.

The legislation would create affirmative defenses for businesses in situations where the employer exercised reasonable care to prevent and correct the abusive conduct or the complaint is based upon an employment decision, such as termination or demotion due to an employee’s poor performance.

The bill would require any complaint be filed within three years.

The bills are all based on language provided to lawmakers from the Workplace Bullying Institute in Washington state.

"Abusive conduct" is defined in the Hawaii bill as:

(1) 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;

(2) Subjection of an employee by the employee's employer to an abusive work environment; or

(3) Retaliation in any manner against an employee because the employee:

(A) Opposed any unlawful safety violation under this part; or

(B) Made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including but not limited to internal proceedings, arbitration or mediation proceedings, and legal actions.

Abusive conduct may include but is not limited to 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; the gratuitous sabotage or undermining of a person's work performance; or interference with subsequent work opportunities by defamatory evaluation. A single act normally may constitute abusive conduct if the act is especially severe and egregious; provided that the severity, nature, and frequency of any conduct objected to shall be considered in determining whether acts constitute abusive conduct.

Similar bills were introduced in Utah and Washington this year, but both measures are dead.

Anti-bullying measures were also introduced this year in Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Vermont, Wisconsin and West Virginia.

The Institute is working to line up sponsors to introduce similar legislation in California in 2013.

I'm going to call it like I see it - Really??? Do we really need this legislation?

This is the kind of law that fosters needless litigation, increases public employer costs tremendously, and in my personal opinion, has no real purpose other than to fatten the wallets of those providing services focused on this alleged problem (of which I have my doubts).

Indeed, the Institute's website makes it very clear that they are in a business to provide goods and services based on the perceived risk or actual experience of workplace bullying with coaching for individuals and organizations, books, DVDs, training, public appearances, etc:

"WBI is the first and only U.S. organization dedicated to the eradication of workplace bullying that combines help for individuals, research, books, public education, training for professionals-unions-employers, legislative advocacy, and consulting solutions for organizations. The Drs. Gary & Ruth Namie, Founders".

The Institute supports its cause with "research" - a couple of highly subjective surveys based upon the "repeated mistreatment: sabotage by others that prevented work from getting done, verbal abuse, threatening conduct, intimidation, & humiliation".

Honestly - that sounds like every employment environment I have ever witnessed. This is such a highly subjective standard there can be no qualitative basis for comparison in one case to the other.

Are there bad apples out there in the public sector work place? Sure. And they are dealt with like any other bad apple presently - with employment based discipline.

But this type of law creates new causes of action and/or or exceptions outside of workers' compensation jurisdiction and is the type of law that is the proverbial slippery slope, and before we know it the private sector will likewise be subject to such regulation.

Not only is this kind of law a slippery slope into an unknown abyss of moral regulation, but to define any act as workplace bullying requires a finding of fact, which means extensive, expensive, lengthy litigation that can ultimately serve only to further demoralize the work force.

To those states that are seriously considering this sort of legislation - get serious. There are more imperative issues out there that require debate.

1 comment:

  1. Unfortunately, bullying is the hottest topic right now all over the United States. In addition, it's unfortunate that you must be a protected class in order to have some recourse under other legal provisions otherwise you just have to take the abuse at the office - believe me some of it is pretty darn harsh. This will be another one of those hot button issues out of the gate, but then it will calm down. - Just think lead, asbestos, solar power, etc...