Workplace Bullying Sheila Gladstone Employment Lawyer (512) 322‐5863 Sgladstone@Lglawfirm.Com

Workplace Bullying Sheila Gladstone Employment Lawyer (512) 322‐5863 [email protected]

What is a bully? • Merriam-Webster: “A blustering, brow- beating person. One habitually cruel to others who are weaker.”

• In a workplace: Hard to define

• Europe • Not at-will = employers have more legal obligations to employees, paternal

Bullying Laws in Europe • Sweden • 1993, first in world • Ordinance on Victimization at Work

• Law protects against “victimization” “recurrent reprehensible or distinctly negative actions which are directed against individual employees in an offensive manner and can result in those employees being placed outside the workplace community.”

• Employer can be liable if conduct degrades the employee’s right to dignity, affects the employee’s mental or physical health, or compromises the employee’s career • A single act is not enough

Bullying Laws in Europe • United Kingdom • No anti-bullying laws • But courts have used Protection From Harassment Act—an anti-stalking law • Prohibits harassment • Courts defined “harassment” as: • Occurring at least twice • Targeted at claimant • Objectively calculated to cause distress AND • Objectively judged to be oppressive and unreasonable

• Helen Green sued London’s Deutsche Bank for pervasive bullying from five coworkers • UK court awarded £817,000 (2006)

Bullying Laws in Europe • European Union • Framework Agreement on Harassment and Violence at Work (2007)

• Intended to address psychological health problems created by workplace violence, including bullying

• Outlines duties of employers to protect workers from bullies

• Saskatchewan • 2007 • Amendment to its OSHA law expanded “harassment” definition

Canada’s OSHA Guidelines

• Examples of bullying: • Spreading malicious gossip • Excluding or isolating socially • Undermining work • Constantly changing work guidelines • Establishing impossible deadlines • “Pestering” • CiCreating a f flifleeling of uselessness – undkderwork • Yelling • Belittling a person’s opinions • Acknowledges “there is a fine line between strong management and bullying.”

• No workplace bullying laws • 22 states have proposed since ‘03 • Causes of action • Harassment based on protected class • Assault and battery • Intentional infliction of emotional distress • Indiana Supreme Court Allowed $325,000 verdict to stand against b ull yi ng d oct or (2008)

New York • “Healthy Workplace Law” being considered would outlaw “abusive work environment” • Defines “Abusive Work Environment” as one where conduct is so severe it “causes physical or psychological harm” • Does not use term “bullying”

• No workplace bullying laws

• House Bill 2517 (2007) • Employer could not “bully or harass” • Left definition to Texas Workforce Commission • Allowed for actual damages, liquidated damages, attorney’s fees • Never left committee

Bullying or Protected Activity?

• Hispanics United of Buffalo, Inc. • EmpltFbkthtthloyee wrote on Facebook that the company didn’t do enough to help a client • Coworkers ganged up on her online • Aggressors fired for bullying • NLRB said termination was wrongful - Protected concerted activity

• Popular culture is frowning upon this:

• New anti-bullying messages in pop culture • Cartoon Network documentary • American Idol star • Flash mobs

School Bullying

• U.S. Department of Education (DOE) unveiled anti -bullying initiative in March

• Most U.S. schools have bullying policies • 46 states have bullying laws

• Districts must have a bullying policy • Bullying is defined as: • A “bl”hh“written or verbal expression” that has the effect of either: • “Physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm” to person or property OR • “Creating an intimidating, threatening, or abusive educational environment for a student.”

School Bullying

• One in seven students (K-12) is either a bully or victim • People bullied at school more likely to be bullied at work • Cyberspace is giving bullies new forums • Bullycide: Suicide prompted by bullying • One of the most common causes of death for 12-14 year olds • Rutgers case results in hate-crime conviction

©2012 Sheila Gladstone, Attorney at Law 9 Hot topic • No laws, but employers and employees have a lot to say • “The U.S. is behind other countries in developing laws and policies against workplace bullying.” • “If you don’t like you job, qqpygguit. Stop trying to get more stupid laws passed.”

Consider “No-Jerk” Policy