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The recorded presentation of AAG’s 2022 Education Seminar held on April 7, 2022 is now available for viewing.
Guest Speaker and Attorney Keith Hammond, of Hammond Law Center, focuses on changes in employment law that have occurred over the past year. Some of the topics addressed include new regulations under the Biden administration, as well as how the new DOL Secretary Marty Walsh and Democratic controlled NLRB could impact your business.
This seminar is also approved for 2 Professional Development Credits (PDCs) with SHRM for all attendees.
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.
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.
True or False: When asked to give a reference for a terminated employee, you should provide only the person’s name, dates of employment, and if asked, salary level?
Furnish just about any other information and (assuming it is negative) the former employee could sue your company for, among other things, defamation.