As we all know, Congress is dysfunctional. But legislative activity at the state and local level is hot, particularly in the employment arena.
State and local governments across the U.S. have passed a spate of recent bills on myriad issues ranging from protecting the right of employees to carry a concealed weapon in their vehicle to limiting when employers can do criminal background checks to prohibiting employers from asking applicants or employees for their social media password.
Yet, there are no laws in the U.S. prohibiting bullying in the workplace. Since 2003, anti-bullying bills have been introduced in 25 states. Everyone has failed.
Puerto Rico almost became the first jurisdiction to pass legislation in this area. But the Governor vetoed the legislation just last month.
But the absence of legislation specific to bullying does not mean that it is lawful. If someone is bullied because of his or her membership in a protected group, such as gender, race or sexual orientation, then the bullying may be unlawful harassment (depending on, among other factors, severity). But bullying unrelated to a protected group status generally is lawful.
For example, equal opportunity bullying is not unlawful. Nor is bullying based on personal animus so long as the animus is not related to a protected group.
The problem is huge. A study published by Career Builder published 2012 indicates that 35% of employees feel they have been bullied at work. Other studies show similar statistics.
The cost of bullying – both emotional and physical – on its victims can be substantial. It can affect witnesses too, who may fear that they may be next and quite often leave. Simply put, bullying is bad business. Engagement cannot exist where bullies roam.
What are some of the steps leaders can take relative to their organizations?
1. Training
a. When training managers on harassment, include bullying, too. Tone at the top is particularly important when it comes to bullying.
b. Provide specific examples in training of what may be bullying; don’t rely on just the generic label.
c. Make clear that managers must do more than refrain from bullying; they must respond to bullying by subordinates. To ignore is to condone.
2. Evaluate
a. When we evaluate employees, particularly leaders, we should consider how they treat others.
b. Employees who engage in bullying or other disrespectful behavior should pay a price on their evaluation—and their compensation.
c. Indeed, sometimes bullying should be cause for termination.
3. Complaint procedure
a. Employers may want to develop a procedure by which they can report what they perceive to be bullying behavior.
b. However, employers need to be careful not to include too specific a definition of bullying. What is the difference between raising your voice and yelling? Sometimes, simply perspective.
c. Anti-bullying policies also may have quasi-contractual significance. Don’t create expectations you cannot live up to.
d. An anti-bullying policy or procedure may collide with the NLRA as interpreted by the activist NLRB so you may want legal advice to minimize (not eliminate) that risk.e. Make clear that bullying is what Company says it is. By making clear that bullying is what the Company says it is, you reduce your risk of not adhering to your own policy. You want to be progressive and protective but not a defendant for doing the right thing.
While bullies may appear strong, they are not. They often need to make others feel bad about themselves to feel good about themselves. We want to empower employees. Sometimes that means un-empowering the bully.
(Author’s Note: This Article should not be construed as legal advice or as pertaining to specific factual situations.)
(About the Author: Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, benefits administrators and managers at Duane Morris, at client sites and by way of webinar on myriad employment, labor, benefits and immigration matters.
Jonathan has published more than 150 articles on employment issues, and more than 50 blogs on leadership, legal and HR issues. A contributing editor to HR Magazine, he has published more than 100 articles for the magazine. Jonathan also is a frequent contributor to Fortune/CNN and BusinessWeek.)
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