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U.S. laws addressing workplace bullying

An analysis

Recognized for nearly seventy years under the Universal Declaration of Human Rights (UDHR) and confirmed through the Vienna Declaration, ILO conventions, and other human rights documents, employees have a basic human right to dignity in their workplaces.

Workplace bullying is a violation of the basic human right to dignity in the workplace. It is a severe and pervasive negative phenomenon in the U.S. workplace, impacting anywhere from 30-90 percent of U.S. workers as either targets or bystanders

Workplace bullying leads to severe damage for targets, witnesses, families, communities, organizations, and society, including loss of esteem, anxiety, depression, heart disease, high blood pressure, psychosomatic illnesses, physical harm, PTSD, suicide ideation, economic losses, turnover, absenteeism, workplace violence, lost production, violence outside work, divorce, increased medical bills, and detachment from communities. It costs employers billions of dollars annually.

To protect employees’ right to dignity and to prevent bullying in the workplace, we need a strong law with strong enforcement. The law must assure:

  1. All workers the right to dignity in their workplace.
  2. That all forms of workplace bullying are prohibited and actionable.
  3. That all targets of workplace bullying have access to an appropriate and complete remedy.
  4. Incentive for employers to take steps to prevent, detect, remedy and eliminate workplace bullying.

The National Workplace Bullying Coalition (NWBC) adopts Lance Compa’s model for addressing issues of workplace rights.

  1. Compa recognizes the need for a strong labor movement. Strong unions have always been the surest path to improving the lives of workers both in and outside of the workplace.
  2. Compa explains we still need strong laws with strong enforcement. With union density hovering around 10 percent in the U.S., strong laws with strong enforcement is more important than ever.
  3. We must rely on at least a critical mass of employers engaging in positive employee relations. We know that even with strong laws, enforcement, and strong labor unions, it would be impossible to police all employers, especially to prevent harm to workers.

From the standpoint of protecting worker dignity and preventing, detecting, remedying, and eliminating workplace bullying, this three-legged stool means we must:

  1. Have anti-bullying legislation in every state and territory and ideally at the federal level as well. Workers must have ready access to remedies for bullying, and the law must have strong enforcement available to all.
  2. We must also have a labor movement that focuses on assuring worker dignity and taking seriously the role they can play in eliminating workplace harassment.
  3. We need to convince employers that they can, should, and will address bullying in their workplaces. While the business case for doing so is clear, it has been clear for more than 30 thirty years, and we can definitively say the business case will not be enough to accomplish this third leg. We will instead need to look at ways to change the view of the role of employers within our system — a daunting task to say the least.

This analysis will focus on the strong law with strong enforcement leg of Compa’s stool. Over the last several years, we have seen several bills passed to address workplace bullying in the U.S.. I will analyze these bills to determine if each fits within the idea of a strong law with strong enforcement. To conduct such an analysis, I will focus on the primary principles the NWBC has developed regarding workplace bullying legislation. The NWBC position is that a strong bill must at a minimum assure:

  1. All workers the right to dignity in their workplace.
  2. That all forms of workplace bullying are prohibited and actionable.
  3. That all targets of workplace bullying have access to an appropriate and complete remedy.
  4. Incentive for employers to take steps to prevent, detect, remedy, and eliminate workplace bullying.

I will also engage in some analysis of these bills in relation to lessons from related U.S. jurisprudence (particularly unlawful harassment) and from abroad.

While none of the bills passed in the U.S. are perfect, I will begin by exploring the most complete bill and then work through the other bills. I will also present some ideas about how each of these bills can be improved and discuss the benefits each bring to the struggle to assure dignity in the American workplace.

Puerto Rico’s law to prohibit and prevent workplace harassment in Puerto Rico

First comprehensive workplace anti-bullying law in the U.S.

The most recent bill to pass

By far the strongest law to date to address workplace bullying in the American workplace in any state or territory

Meets most of the four requirements of any effective bill to address workplace bullying

Puerto Rico’s Constitution is built around a strong recognition and protection of human rights. In particular, the Constitution of Puerto Rico recognizes that “the dignity of the human being is inviolable.” The bill is based around the fundamental right to dignity (and other worker rights) in the workplace. Puerto Rico’s Constitution also specifically protects other workers’ rights including the rights to:

  • Freely choose their occupation and resign from it
  • Receive equal pay, protection to their health, and personal integrity.

Puerto Rico’s employment law also offers stronger protections than most U.S. jurisdictions including the right to file actions for constructive dismissal, specific statutory protections against retaliation, and a path to summary judicial proceedings for many employment laws.

As we see in international experiences, countries where the respect for human rights including dignity inside and outside of the workplace are much more effective in addressing workplace bullying. In the European Union where countries have adopted the EU Charter on Human Rights, we see strong laws in Sweden, Finland, Belgium, and France that prohibit harassment and bullying. Likewise in Quebec, where the government has long recognized and codified human rights, they have a strong anti-bullying bill in place. So given the protections in Puerto Rico’s Constitution (and other employment laws in the territory), it is not surprising that the Puerto Rico bill offers strong protections for workers.

Does the law assure all workers the right to dignity in their workplace?

The first question we explore is whether a bill assures the positive right to dignity. For the most part, U.S. employment law is based around a negative rights standard – i.e. the right to be free from XYZ. The problem with this standard from an employee advocate standpoint is that abusive employers can find other ways to impact employees in the same way. So guaranteeing a positive right versus focusing on these negative rights is a critical component of a strong bill.

As mentioned, the positive right to dignity, both in and outside of employment, is guaranteed in the Constitution of Puerto Rico. Puerto Rico’s law to prohibit and prevent workplace harassment in Puerto Rico “reaffirms that the dignity of the human being is inviolable,” establishing that this inalienable right exists inside and outside of the workplace. The Puerto Rican law also covers most but not all workers. The definition of employee includes all who provide services “for compensation” to be “interpreted in the broadest possible way.” Article 3 of the law – The Scope of Application –

This Law will apply to employees, regardless of the nature of the job, its category, hierarchy or classification, or the duration of the employment contract, who are the object of conduct known as workplace harassment.

Conclusion: The protection of the right to dignity is a strong positive for this law. However, the application to compensated employees does leave a gap for volunteers and potentially independent contractors — a gap that I would recommend needs to be closed.
Are all forms of workplace bullying prohibited and actionable?

At first glance, there appear to be some problems with the definition of harassment/bullying under the Puerto Rican law:

  • The use of the term “malicious” and the focus on the repetitive nature as we have long explained are problematic. Malice implies not only specific intent, but also a specific intent to inflict a high level of harm. For plaintiffs, this malicious intent will almost always be impossible to prove, as we have seen with the tort of intentional infliction of emotional distress. So this term should be avoided in the law wherever possible, especially in laws where the term is used for something other than to establish the level of culpability or to help determine an appropriate remedy.
  • Requiring acts to be repetitive to rise to the level of bullying is also problematic. As we have seen in the litigation under the Quebec law on psychological harassment, single incidents of workplace harassment or bullying can be just as damaging to targets.
  • The use of the terms “malicious” and repetitive also take us away from the positive rights focus to a more negative rights approach – focusing on a prohibited behavior rather than a guaranteed right.

However, in the instance of this legislation, there are strong indicators that neither malice nor repetitiveness are required elements:

  • A simple grammatical analysis indicates that the law as written would seem to list malicious behavior as just one example (as indicated by the semi-colon) and arbitrary, unreasonable, and capricious as yet another. “Workplace harassment” is defined as malicious, unwanted, repetitive and abusive conduct; arbitrary, unreasonable and / or capricious; verbal, written and / or physical; repeatedly by the employer, his agents, supervisors or employees, alien to the legitimate interests of the employer’s company, not desired by the person, who violates their protected constitutional rights, such as: the inviolability of the dignity of the person, the protection against abusive attacks on his honor, his reputation, and his private or family life, and the protection of the worker against risks to his health or personal integrity in his work or employment. This workplace harassment conduct creates an intimidating, humiliating, hostile, or offensive work environment, not suitable for the reasonable person to perform their duties or tasks in a normal manner.
  • Article 8 of the law lays out examples (non-exhaustive list) of bullying behaviors and adopts a “totality of the circumstances” standard. There is no mention of malice or specific intent in this article, and the  examples fall short of what we normally think of as being malicious. Further, Article 2 Public Policy of the Law provides us with further guidance: “This Law establishes a vigorous public policy against all types of workplace harassment that affects the performance of the worker, alters the industrial peace, and violates the dignity of the workers, not matter what their category or job classification.” We also see indicators in the purpose statement of the law that suggest that workplace bullying will be broadly construed. While a final determination will depend on judicial interpretations, employer side law firms have interpreted the law as establishing an and/or standard of malicious, abusive, arbitrary, unreasonable and/or capricious.
Conclusion: This area could use some clean-up and minor amendments. Language could be changed away from malice and emphasize that either intent to bully or the effect of harming worker dignity, esteem, or other human rights would both be forms of bullying. While it makes sense to recognize that bullying is often repetitive, or perhaps more accurately ongoing with different methods and tactics used throughout, there should be a stronger statement recognizing that single incidents can and often do violate the fundamental right to dignity in the workplace.
Do all targets of workplace bullying have access to an appropriate and complete remedy?

A third critical aspect for an effective workplace bullying law is that it must provide access to all workers, and they must have access to a full and complete remedy. The Law to Prohibit and Prevent Workplace Harassment in Puerto Rico provides four levels of access to workers:

  1. It requires employers to have a remedial process in place. Workers are afforded access to an internal process. We at the NWBC do not interpret this point as access to an independent remedy, so this part alone does not meet the requirement of access to an appropriate and complete remedy.  Again, turning to the U.S. jurisprudence of unlawful harassment, we know that many, if not most, plaintiffs had access to some sort of internal process or remedy before they litigated their case.  These systems are often set up in ways to protect employers, not targets and not their rights to dignity.
  2. It provides workers who are unsatisfied with the results of the internal process with access to the Bureau of Alternative Methods for the Resolution of Conflicts (BAMRC) of the Judicial Branch. While I cannot speak to the process in this bureau, the use of mediation can be problematic in workplace bullying cases. Mediation often favors the more powerful party, which in cases of bullying is of course the bully. However, much of the research on this process has focused on face-to-face mediation and often through an employer’s internal Alternative Dispute Resolution (ADR) process (generally thought of as processes that are used to avoid disputes being resolved through the formal legal process or litigation. ADR processes include mediation, fact-finding, and arbitration, and in some cases internal employer complaint processes and quasi-judicial processes). These forms of mediation create a natural bias and again are an extension of the employer’s internal process. However, the BAMRC process is more likely to follow court mediation processes that we see across the country and one I am familiar with as an attorney in West Virginia. Because they include representation of both parties and often follow many of the lessons from other forms of mediation such as mediation of family law issues, these processes can create a more balanced approach and may lead to resolution. Still, this part is far from ideal. However, the mediation is not damaging as both parties must agree to mediate. The mediation is not required.
  3. It provides targets access to a summary procedure to litigate their case, a critical part of the law. This procedure applies to other employment laws in Puerto Rico as well. Again, I am not entirely familiar with this process, but one of the benefits appears to be a much quicker access to a court and to a court decision. This process can play the same role as expedited labor courts in other jurisdictions such as Canada, which allow for a quicker resolution and make it more likely that the employment relationship can continue, a critical outcome. In the U.S., the most likely outcome for targets of bullying and even unlawful harassment is job loss that exacerbates their damages.
  4. It provides access through the traditional court system. However, this access (as well as to the summary process) is more limited than what I would like to see. There is a one-year statute of limitations that begins to run “from the moment the employee felt subjected to the alleged workplace harassment.”

While not directly related to access to a full remedy, the law also clearly establishes that workplace harassment would be a legitimate reason to show constructive discharge under the Puerto Rico law on constructive discharge, but targets do not have to suffer job loss to have a claim under the new law.

While this law affords employees in Puerto Rico with access to remedies, this access could be broadened. For instance, rather than just utilizing an administrative agency for ADR, the law could provide the Department of Labor and Human Resources with adjudicatory process or provide an administrative law process for targets of harassment. Further, the statute of limitations could be expanded beyond the one-year limitation to allow targets a better opportunity to make what is often a difficult decision to go through the litigation process.

When we look at remedies under this law, the focus seems to be about incentivizing employers to prevent and eliminate harassment – important goals – rather than make whole remedies. The law does specifically list a variety of harms targets might suffer in the motives statement of the law. These harms include stress, depression, PTSD, personality and relationship damage, AND damages to the target at the family, social, professional and economic level. So there is an indicator that the law will allow for compensation for a broad range of damages AND these will be compensated at double the amount of actual damages.

Conclusion: There are several ways to strengthen this law in regard to access to a full remedy. First, where there are no economic damages, a nominal damages clause could provide a remedy – perhaps $10,000 as nominal damages where there are no economic damages. Further, the law could provide for a one-way fee shifting so that defendants would have to pay successful plaintiff’s legal fees and costs.  Finally, while the law addresses the myriad of harms that bullying causes, it fails to explicitly include them in the damages article.
Does the law provide a strong Incentive for employers to take steps to prevent, detect, remedy, and eliminate workplace bullying?

When we mention incentives for employers to address workplace bullying, we’re talking about penalties under the law. While there is a clear business case to prevent, detect, remedy, and eliminate workplace bullying, this incentive exists outside of the law. When assessing the incentives to address workplace bullying, we need to look at the penalties employers can avoid by taking appropriate steps to prevent, detect, remedy, and eliminate workplace bullying. This law provides some strong incentive for employers to address workplace harassment.

Article 5 of the law lays out the employer liability as follows:

Any employer who incurs, encourages, or permits workplace harassment will be civilly liable to the affected persons. It will be the responsibility of every employer to take the necessary measures to eliminate or minimize the occurrence of workplace harassment in the workplace.

The same article describes the requirement that “every employer will adopt and implement the necessary internal policies to prevent, discourage, and avoid workplace harassment. 

This language using the term the “necessary” policies mirrors language used in the French and Belgian laws on workplace bullying and increases the expectations on employers beyond what we see in the Faragher defense for U.S. employers for unlawful harassment. (The Faragher defense was established by the U.S. Supreme Court in their 1999 decision in the case of Faragher v. The City of Boca Raton, a sexual or gender harassment dispute under Title VII of the Civil Rights Act. In this case, the question revolved around employer liability for unlawful harassment in their workplace. The Court determined three levels of liability for employers:

  1. For harassment by non-supervisory employees or third parties, employers would only be liable for harassment they knew or should have known of and then only if they failed to take prompt, remedial action.
  2. For supervisory harassment that led to a negative, tangible, adverse job effect for the target, employers would be strictly liable.
  3. For supervisory harassment that did not lead to a tangible job effect, employers would be liable unless they could show a two-pronged defense: 1) requires the employer to show that the employer exercised reasonable care to prevent and correct promptly any harassment and 2) that the employee unreasonably failed to take advantage of any preventive or corrective provided by the employer OR to avoid harm otherwise. This two-pronged defense after 20+ years of interpretation in the courts has led to a general standard: did the employer have a reasonable anti-harassment policy, and did the target unreasonably fail to utilize such policy?)   

By setting a standard that employers must take the necessary steps, this part indicates employers will be liable if targets can show that the employer could have done more.

Further, under the same article, this law lays out that employers will be strictly liable for supervisor actions and will be liable for all bullying they know or should have known of, unless they take “immediate and appropriate actions to correct” the harassment.

Employers are also liable for double damages under the law:

Article 11. Any person responsible for workplace harassment as defined in this Law will incur civil liability for an amount equal to double the amount of the damage that the act has caused the employee apart from any other liability that could be criminally imputed.

Conclusion: The guidelines to the law developed by the Secretary of the Department of Labor and Human Resources of Puerto Rico further lay out the steps employers must take to avoid liability. Following these steps will provide immunity for the employer but not the bully. While many of these steps follow the Faragher defense, several of the gaps left open by Faragher are filled. The guidelines lay out the following requirements for employers:
  1. All employers must adopt policies to prevent, discourage, and avoid workplace harassment.
  2. The employer’s policy must meet two goals:
    1. To guide employees about workplace harassment to promote a healthy working environment and prevent harassment.
    2. Establish an internal policy to report and investigate incidents.
  3. The policy must include a statement that the employer has a legal obligation to address harassment and that harassment will not be tolerated and should include a statement of what the workplace should look like.
  4. The policy must include the statutory definition of harassment and the examples from the law.
  5. The policy must include a statement that engaging in harassment could lead to discipline.
  6. Employers must take the “necessary” steps to eliminate or minimize the occurrence of workplace harassment or bullying.
  7. Employers should develop guidelines for supervisors to be “attentive to behaviors that could be considered harassment, as well as to report the allegations they receive.”
  8. The employer policy must contain a declaration of confidentiality throughout the investigation.
  9. The policy must contain a declaration of protection against retaliation.
  10. The internal filing procedure must be “adequate” based on the size of the employer, and at a minimum there must be must at least be one alternate route to report claims.
  11. Investigations of claims must be fair, effective, and objective, and employers must investigate ALL allegations.
  12. Employers are obligated to disseminate information on the law and the employers policy to all of their employees.
  13. The guidelines also recommend training on the law and policy via orientations and seminars on the topic.

Virginia’s workplace bullying law for K-12

In 2018, Virginia passed the following workplace bullying legislation:

  • 22.1-291.4. Bullying and abusive work environments prohibited.
  1. Each school board shall implement policies and procedures to educate school board employees about bullying, as defined in § 22.1-276.01, and the need to create a bully-free environment.
  2. Each school board shall adopt policies to:
  3. Prohibit abusive work environments in the school division;
  4. Provide for the appropriate discipline of any school board employee who contributes to an abusive work environment; and
  5. Prohibit retaliation or reprisal against a school board employee who alleges an abusive work environment or assists in the investigation of an allegation of an abusive work environment.

Part of the power of this law is its simplicity. By requiring school boards to adopt specific anti-bullying policies, these adopted policies may indeed give teachers and staff of the schools a contractual right to a workplace free from bullying (or at least to a workplace where employers follow a reasonable policy). The bill also leaves the definition of bullying or an abusive environment open. This approach would allow a fact finder to determine whether or not bullying has occurred and could conceivably lead to all forms of bullying being addressed — or at least lead to the adoption of a reasonable person under all of the circumstances such as we see in U.S. harassment jurisprudence. While the Virginia law only applies to schools, it does seem that it would protect all employees in the schools.

Conclusion: While the Virginia law holds promise to address workplace bullying at least in education, the reality is that promise has yet to be met. The NWBC has found that many schools still have not adopted any form of a workplace anti-bullying policy, and there have been no penalties for failing to do so. Further, amendments that have been passed in the Virginia House and Senate have narrowed the definition of bullying to include malice, intent, repetitiveness, and a requirement of showing physical or psychological harm to bring a claim forward. This language that mirrors that of the Healthy Workplace Bill creates an obstacle that will prevent the majority of targets of workplace bullying from having a viable claim under the law. The language also provides no incentive for the employer to eliminate bullying before it causes irreparable harm. After decades of research and experiences with international laws, it is clear that such language is not necessary and is actually counterproductive to achieving the goal of assuring dignity in the workplace.

Bills that promote bully-free workplaces but have no enforcement mechanisms

California

California has what can be referred to as the training law.  There is no enforcement, but employers are required to provide training on harassment, and they now must include training on workplace bullying or what the CA law refers to as abusive conduct. Unfortunately, this law also eliminates many forms of workplace bullying from this training requirement via the definition of abusive conduct:

“Abusive conduct” means 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. Abusive conduct may include 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, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

Utah

A similar law in Utah applies only to state agencies and, like the California law, requires state agencies and quasi-public organizations to engage in workplace bullying training.  The Utah law clearly and specifically states that it does not create any cause of action for targets of workplace bullying.

Tennessee

Finally, the Tennessee law on workplace bullying that also held great promise as the first anti-bullying law to be passed by any state in the U.S. has now become referred to as the immunity bill. The Tennessee law applies to the private and public sector due to recent amendments expanding the bill to the private sector. The law grants immunity to employers if they adopt the model policy, not just for claims under that specific law, but also for any related types of claims such as intentional infliction of emotional distress. The law also specifically states that it does NOT create any direct cause of action for targets. The bill does contain a strong model policy that employers must adopt to acquire the broad immunity. The model policy requires:

  1. All employees have a right to be treated with dignity and respect.
  2. All complaints be taken seriously.
  3. A broad definition of abusive conduct.
  4. An anti-retaliation provision.
  5. A broad reporting structure allowing targets to report to any supervisory or HR employee.
  6. Supervisors to report incidents of workplace bullying.
  7. Employers must conduct immediate actions to protect complainant.
  8. Employers must conduct prompt, thorough, and objective investigations.
  9. Employers must take appropriate remedial action.
  10. Targets’ confidentiality must be protected to the extent possible.

The bills in California, Tennessee, Virginia, and Utah do have some positives:

  1. They help raise awareness of the issue, the prevalence of, and the harm caused by workplace bullying.
  2. Through the training and/or policies they require, they may prevent and even remedy instances of workplace bullying, especially if employers take their obligations seriously.
  3. The bills in some cases might also set a standard expectation for employers and their anti-bullying policies as well as lead to the further development of best practices.
  4. These laws also might be a foot in the door to the passage of stronger legislation like the law in Puerto Rico or the Dignity at Work Act.

Conclusion

Like so many of the international laws that address workplace bullying, the Law to Prohibit and Prevent Workplace Harassment in Puerto Rico shows we can and should take steps to prevent, eliminate, detect, and remedy workplace bullying. We must adopt strong laws that mirror or exceed the laws in Puerto Rico, Sweden, France, Quebec, Finland, and Belgium. The laws:

  • Should and must have strong enforcement.
  • Should focus on a positive rights approach to assuring dignity in the workplace.
  • Should prohibit all forms of workplace bullying and avoid limiting language such as malice, intent, or repetitiveness.
  • Should recognize and provide remedies for the broad range of harm caused by workplace bullying – economic, career, psychological, social, physical harms to the target, and harms to the families and communities.
  • Must provide clear access for targets of workplace bullying and clear incentives for employers to prevent, detect, remedy, and eliminate workplace bullying.

All workers should have a protection to their dignity and a legal right to a workplace free from harassment and bullying. The National Workplace Bullying Coalition is committed to engaging in the struggle for such rights until we can truly say that all workers are assured the fundamental human right of dignity in all workplaces.

Join us in our efforts to assure passage of strong laws with strong enforcement by signing up as a member »

Written by Jerry Carbo, President, National Workplace Bullying Coalition. Jerry is a Professor of Management at the Grove College of Business at Shippensburg University (PA). Notably, he was selected in 2015 to be a member of the newly formed EEOC Select Task Force on the Study of Harassment in the Workplace. He holds a PhD from Cornell’s School of Industrial and Labor Relations and a JD from Penn State University. Dr. Carbo is a member of the State Bar of West Virginia. His primary teaching areas are Business and Society, Labor Relations and Employment Law. Dr. Carbo conducts research in workplace bullying and harassment as well as socially sustainable business systems. Academic articles include: Workplace Bullying: Developing a Human Rights Definition from the Perspective and Experiences of Targets.Working USA (September 2010) w/ A. Hughes; Strengthening the Healthy Workplace Act…’ Experiences, Journal of Workplace Rights, Volume 14 No. 1 (2009).

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