What right-thinking legislator would vote against a bill named “The Healthy Workplace Bill?” Unless you want a heap of new HR headaches to deal with, you’d better hope a lot of them do.
The reason: The Healthy Workplace Bill is the Orwellian name given to a new model piece of legislation—proposed in 13 states but not passed in any yet—that would make “workplace bullying” an unlawful employment practice and give victims the legal right to such employers that fail to prevent it.
Currently, bullying actions by bosses are only illegal if they’re based on the victim’s “protected” characteristic (race, gender, etc. under federal Title VII), or if the victim can claim intentional infliction of emotional distress under state law. But this legislation could open organizations to much broader liability. The bills typically don’t use the word “bullying,” but instead make employers liable anytime they fail to stop “abusive conduct that causes physical or mental harm.”
Therefore, if your state passes such a bill, your organization could become liable for everything from overly aggressive bosses to a supervisor who gives the cold shoulder to an employee.
“Bullying is very hard to define. And if you can’t define it clearly, it’s hard to be the enforcer,” says Michael W. Fox, an employment lawyer for Ogletree Deakins and editor of HR Specialist’s Texas Employment Law newsletter.
The concept of formal protection against workplace bullying began in Sweden, which passed a law in 1993 that prohibited employers from engaging in “victimization of employees.” Specifically, that meant slandering, deliberately insulting and disciplining without cause.
Other European countries have joined the fun. Legal codes in Germany and France now bar “moral harassment,” such as excessive criticism and bullying. The movement jumped across the pond in 2004 when Quebec passed an anti-bullying statute. Saskatchewan followed in spring of 2007.
In the United States, the flag is being carried by The Workplace Bullying Institute, a Washington-state advocacy group led by two psychologists. The pair has appeared on Oprah, the Today show and other media outlets to warn of the danger of workplace bullying and the need for such legislation.
The institute’s research says 20% of employees suffer from health issues as a result of workplace bullying. In 81% of bullying cases, the institute says, the bully is a boss.
So far, 13 states have introduced workplace bullying legislation: California, Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon, Vermont and Washington.
“Be on the lookout for these bills … it’s something that’s very dangerous for employers,” says Fox. He says passage of these state laws aren’t imminent, but lawmakers will keep introducing the bills until one state cracks. That will break the dam and lead to passage in other state.
How to respond to this trend?
HR professionals don't have their heads in the sand; they know all too well that bullying does occur in the workplace.
“It’s usually acted out in subtle ways, giving people the cold shoulder, excluding them from groups, getting other workers to buy into a negative belief about a person,” says Kevin Huber, an HR consultant from Tampa. “Bullying employees can be crafty and they try to stay under the radar of HR on this.”
The question is, however, will new laws make the matter worse?
“It’s not that this behavior is good … but anti-bullying legislation is not the right answer,” says Fox. “It’s trying to take this European concept and transpose it to a totally different legal system.”
Fox suggests employers establish their own “no jerk” policies and rules. Specifically, don’t have a “no bullying” policy, but do set rules that say you don’t alloy ANY harassment at work, not just harassment based on race, sex, etc. Then, follow up quickly and firmly on complaints.
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