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As mass shootings have continued with regular frequency in the United States, our country remains deeply divided, not only with the cause of these tragic events, but also on how to stop them from occurring. Many have called for increased gun control, including a ban on assault-style rifles like the AR-15 and universal background check requirements for all firearms transactions. Others have called for fewer restrictions on law-abiding gun owners’ ability to carry concealed firearms at their places of work and on public property, arguing that additional guns on the scene often prevent unnecessary harm.
Employers are caught in the middle of this debate, as they often must resolve the issue of whether employees with concealed carry permits should be allowed to carry their firearms at work. Would doing so make workplaces safer or more dangerous? Are there potential legal liability issues to consider? In making this decision, you need to assess a constellation of legal and policy factors.
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The media, paired with political figures, have paid increased attention to workplace bullying in recent years. Legislators in 21 states have even introduced bills to address and combat workplace bullying, starting with California in 2003.
However, none of the legislatures in states which these bills have been introduced have passed the bills into law. There are a variety of explanations for why there has not been a change in the law despite workplace bullying becoming a hot button employment issue, but the most obvious explanation is this: it truly is difficult to define workplace bullying.
What Is It….Exactly?
The general definition of work place bullying is a behavior in which an individual or group uses persistent, aggressive, or unreasonable behavior against a coworker or subordinate. As with childhood bullying, we often think of workplace bullying as being physical acts against another, such as assaulting a coworker or invading a coworker’s personal space in a threatening manner, however it often takes a more subtle forms. For instance, a supervisor can act as a bully by manipulating work tasks, like giving a victim repetitive or irrelevant assignments as a means of control. Supervisors can also act as a bully in the way they provide feedback. For instance, a supervising bully can choose to belittle a subordinate in a public setting so as to humiliate them, as opposed to delivering the constructive criticism in a private setting.
Because bullying comes in many forms and is often understated, it is a challenge to create a proper definition for it. Most notably, it is difficult to draw precise lines between assertive managers and bullying conduct. Employers depend on their managers to evaluate the performance of the employees under their supervision and to provide feedback so employees can learn from mistakes and improve. The big question is how do we know when that vital evaluation process has crossed the line and become bullying behavior, especially when criticism by its nature entails negative statements.
Employers can use two simple rules of thumb to aid in analyzing if certain behavior constitutes bullying, especially with respect to supervisor/supervisee relations:
Problems Are Both Legal and Practical
State legislatures might struggle to define workplace bullying, but the absence of specific anti-bullying laws should not deter employers from being wary to this phenomenon. If left unchecked, bullying can create a host of workplace headaches, such as (1) increased use of sick leave, (2) increased use of medication, such as anti-depressants, sleeping pills, and tranquilizers, (3) social withdrawal, (4) decreased productivity and motivation, (5) increases in the frequency and severity of behavior problems, (6) erratic behavior, such as frequent crying spells and increased sensitivity, and (7) increased turnover.
And the fact that there is no designated legislation for workplace bullying does not mean that the behavior cannot create lawsuits in other ways. Assault and battery claims are the most obvious legal actions that bullying can cause, but there are a host of other ways that employees who are bullied (or who perceive they were bullied) can gain access to the courts.
For instance, a bullying victim can bring a claim pursuant to Title VII for harassment or discrimination if the individual ties the activity to a protected characteristic, such as “my female boss degrades men under her supervision.” A bullying victim can also bring a claim against an employer for negligent hiring and retention on the theory that the employer knew about a supervisor’s bullying tendencies (either during the hiring process or thereafter) and did nothing. There are even implications under OSHA which requires that employers complete a Workplace Violence Incident Report in any instance which an employee commits a violent act against another employee.
Closing Advice
In light of the performance, and litigation, related reasons to combat workplace bullying, you should take steps to handle this problem, if you have not done so already. Every employer should have an anti-bullying policy that : (1) defines workplace violence and bullying behaviors, (2) provides a reporting procedure that identifies multiple managers to whom incidents or threats can be reported, and (3) encourages employees to report incidents, especially by assuring them that the employer will not tolerate retaliation against an individual who complains of bullying.
The last point is especially important because bullying victims often feel powerless as a result of the power dynamic that the bully has fostered. You should also train your managers on workplace bullying so they have a basic understanding of the warning signs and the potential impacts for not addressing bullying at the first possible instance.
While the law has not caught up to the problem of workplace bullying, a savvy employer can get in front of the issue by taking basic steps to ensure a bully-free workplace.
You may be already aware of the continuing escalation of all forms of whistleblower and retaliation claims, including the 20+ Anti-Retaliation laws enforced by special investigators from OSHA’s Whistleblower group.
On one of OSHA’s recent news releases, they state that the Labor Department filed a federal lawsuit against Duane Thomas Marine Construction and its owner Duane Thomas for terminating an employee who reported workplace violence, which is a violation of Section 11© of the OSH Act. OSHA asserts the employer fired an employee for complaining about unsafe work conditions. It may seem a bit unusual to hear that the alleged unsafe conditions involved fear of workplace violence, but who can blame an employee in today’s current environment. However, as it turns out the hazard the employee complained about was the owner!
The employee alleged that, on numerous occasions between 2009 and 2011, Mr. Thomas committed workplace violence and created hostile working conditions. He allegedly behaved abusively, make inappropriate sexual comments and advanced, yelled, screamed, and made physically threatening gestures, in addition to withholding the employee’s paycheck.
The employee, who worked directly for Mr. Thomas, reported to him that he was creating hostile conditions. On Feb 25, 2011, the employee filed a timely whistleblower compliant with OSHA alleging discrimination by Thomas for having reported the conditions to him.
On March 28, Thomas received notification of the complaint filing. Five days later, Thomas had computer passwords changed to deny the employee remote access to files and then terminated the employee. OSHA’s subsequent investigation found merit to the employee’s compliant.
OSHA is seeking back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement for the employee. Additionally, OSHA seeks to have the employee’s personnel records expunged with respect to the matters at issue in this case and bar the employer against future violations of the OSH Act. Wow…. but the usual warning: we may not know all of the facts.
The employer may have behaved badly and gave the employee the ability to make out a viable claim. Or, the employee may have exaggerated, or even made up the whole thing. But while most employee lawsuits are notorious for not being completely accurate, there must be at least some pretty bad facts for OSHA to take the action it did.
This atmosphere may or may not have presented a valid safety hazard, but guess what? Under the law, the violation is the act of terminating the employee for complaining about a safety concern. And the catch is…the concern does not have to be valid! Please note there is a different standard if the employee refuses to work because of an unfounded and unreasonable concern.
For all we know, the employee could have annoyed his boss with unfounded complaints until the boss fired him in a moment of anger…but that too is a potential violation.
The take away advice from this scenario is to eliminate two phrases from your vocabulary: “Boys will be boys” and “You had to be there”. The main problem is that lawyers and Uncle Sam will ultimately be there if one’s conduct is foolish enough.
Be sure to train your supervisors to behave professionally regardless of the setting and remind them of the many behaviors, including some of the offbeat ones, that are protected as Whistleblowing.