by Susan L. Nardone and James J. La Rocca
o law in the United States expressly out- the course of employment.”1 The WBI adds the requirement laws bullying at work, yet there has been that the conduct be “health-harming” in its definition: a significant amount of attention paid to “repeated, health-harming mistreatment of one or more per- workplace bullying concerns. As a result, sons (the targets) by one or more perpetrators,” which over the past decade 26 states have intro- includes “abusive conduct” that is: 1) “threatening, humiliat- duced ‘healthy workplace’ legislation ing, or intimidating,” or 2) constitutes “work interference— Naimed at combating workplace bullying—including proposed sabotage—which prevents work from getting done,” or 3) bills by the Senate and Assembly in New Jersey. Although constitutes verbal abuse.2 none of these healthy workplace bills have become law, pru- David Yamada, a law professor at Suffolk University Law dent employers should be prepared to prevent workplace bul- School, is the original author of the Healthy Workplace Bill. lying and address employee complaints. The most recent iteration of the Healthy Workplace Bill defines abusive conduct as “acts, omissions, or both, that a Workplace Bullying Defined reasonable person would find abusive, based on the severity, Not surprisingly, workplace bullying is difficult to define. nature and frequency of the conduct.”3 Under the model leg- Bullying behavior, when aimed at a particular individual islation, it is an aggravating factor when “the conduct exploit- because of his or her membership in a legally protected class, ed an employee’s known psychological or physical illness or may give rise to claims under the anti-discrimination laws. disability,” which is also defined in the law. It’s no secret that But what if the conduct is not motivated by protected class? the model bill was fashioned from civil rights legislation and When does conduct by a manager or coworker rise to the level tort law, and some of the language is familiar to employers of bullying? Must employers regulate civility in the work- and their counsel. In fact, the similarities are so great that place? commentators have coined the phrase “intentional infliction These questions are difficult to answer, even when consid- of a hostile work environment” when referring to bullying ering the many attempts to establish guidelines for what con- claims. stitutes bullying behavior. The Society for Human Resource Far from providing clear answers, these definitions prove Management (SHRM), the Workplace Bullying Institute just how difficult it is to establish a workable standard. Even (WBI), and state legislators across the country have offered the examples that have been provided to offer clarification definitions for bullying, abusive conduct, and an abusive generate their own set of questions. Excessively harsh criti- work environment but no single definition has gained univer- cism has been described as potential workplace bullying, but sal acceptance, and even slight variations in terminology what constitutes ‘excessive’ or ‘harsh’ is subject to interpreta- result in different standards. For example, in a sample policy tion. Other examples include false accusations of mistakes posted by SHRM on its website, bullying is defined as “repeat- and errors; impossible deadlines; malicious lies, gossip, ed inappropriate behavior, either direct or indirect, whether rumors and teasing; and withholding information and verbal, physical or otherwise, conducted by one or more per- resources necessary for an employee to perform his or her job. sons against another or others, at the place of work and/or in For the most part, these are subjective standards, and with
30 NEW JERSEY LAWYER | December 2014 NJSBA.COM that comes additional uncertainty. To be ers and makes the affirmative defense ognized to be outside their purview.4 sure, there is certain behavior that most unavailable when the abusive conduct would agree is not appropriate in the is by a manager or supervisor. And, Why Companies Should Address workplace. However, the notion that under the Senate bill, the affirmative Bullying Now we’ll know it when we see it leaves defense does not apply if the violation Whether or not workplace bullying many employers scratching their heads includes an adverse employment action legislation ever becomes law, the reality over whether a specific scenario should against the aggrieved employee, such as is that businesses should take steps to be considered workplace bullying. a demotion or termination. Clearly, this guard against it. In addition to being the provision of the Senate bill is modeled right thing to do, preventing workplace New Jersey’s Healthy Workplace Bills after the affirmative defense available to bullying makes good business sense. New Jersey has had anti-bullying leg- employers in hostile work environment Workplace bullying has been shown to islation directed at schools since 2002, claims under the anti-discrimination have a real impact on employees and and in 2011 passed the comprehensive laws. the companies that employ them: Anti-Bullying Bill of Rights. The state One of the most significant differ- has yet to pass anti-bullying legislation ences between the bills is that the Sen- • Bullying negatively impacts directed at the workplace, but several ate bill provides a private right of action, productivity. Employee morale bills have been introduced in recent with a one-year statute of limitations, and productivity is bound to suffer years. New Jersey’s Assembly first pro- for violations, which is consistent with where there is bullying. Bullying tar- posed a healthy workplace bill during the model Healthy Workplace Bill. The gets and the employees who work the 2006-2007 legislative session, Assembly bill limits the remedy to a around them are, at the very least, becoming the 10th state to do so at that financial penalty against the employer. distracted by the behavior. Bullying time. Since then, both the Assembly and Both bills have been sent to their respec- victims are also more likely to miss the Senate have proposed several ver- tive labor committees with no action work, either to avoid the bully or due sions of the bill. In the current legisla- taken. to illnesses caused by the bullying tive session, there are two healthy work- If either bill becomes law, employers behavior. place bills pending: S-280 (Jan. 14, would have good reason to raise their • Nobody likes a bully. If an 2014) (formerly S-3115) and A-1090 guard. New Jersey already zealously pro- employer develops a reputation for (Jan. 16, 2014). tects the rights of employees through employing bullies or ignoring bully- The pending bills are similar in some expansive anti-discrimination, whistle- ing behavior, it may have difficulty respects and dramatically different in blower and other laws. The addition of a attracting the most talented individ- others. Both bills make it an unlawful claim for workplace bullying would uals. Similarly, existing employees, in employment practice for an employer to exponentially increase the number of whom the company has already subject an employee to “abusive con- lawsuits being brought against New Jer- invested valuable resources, are not duct” or to permit an “abusive work sey employers. By way of example, the likely to remain in an abusive work environment.” Although the bills differ legislation broadly defines workplace environment and will leave the com- in their definition of abusive conduct, bullying to include such things as pany for other opportunities. In both define an abusive work environ- derogatory remarks. As drafted, the leg- short, businesses that prevent work- ment as a workplace in which an islation could open the door to com- place bullying are more likely to employee is subjected to abusive con- plaints by workers who view negative become ‘employers of choice’ that duct that is severe enough to cause feedback concerning their performance can attract and retain the most tal- physical or psychological harm to the from their supervisors as bullying. This ented employees. employee. Both bills also provide for an has the potential to cause supervisors • Bullying leads to negative pub- affirmative defense to employers who and managers to be less inclined to offer licity. Bullying allegations are news- can show they have taken reasonable legitimate feedback to their subordi- worthy. Take, for example, the head- care to prevent and correct the abusive nates out of concern they will become lines generated by the recent conduct and the aggrieved employees the target of bullying accusations. In accusations against Miami Dolphins failed to take advantage of the preventa- addition, bullying legislation that pro- football player Richie Incongnito, tive measures. However, the Senate bill vides a private right of action would who was accused of bullying his limits the availability of the affirmative expand the Judiciary’s role into business teammate. Allegations of workplace defense to abusive conduct by cowork- matters that courts have repeatedly rec- bullying can harm a company’s repu-
NJSBA.COM NEW JERSEY LAWYER | December 2014 31 tation, leading to the loss of employ- it seriously. Many companies already resolved quickly, whenever possible. ees, customers and clients. The adage have anti-discrimination, workplace Having an established mechanism that an ounce of prevention is worth violence and code of conduct policies for review gives employees comfort a pound of cure applies here, particu- in place. Companies could revise one that their employer takes their com- larly since even the most aggressive or more of these policies to incorpo- plaints seriously. In addition, it gives (and costly) marketing campaign to rate a specific prohibition against employers an opportunity to demon- restore the public’s confidence has no workplace bullying, or develop a free- strate their commitment to the no- guarantee of success. standing policy. Either way, the com- bullying philosophy and enables • Employers with bullies are pany should make it clear to its them to take advantage of the affir- more susceptible to lawsuits. employees that bullying, like other mative defense in the event legal Although workplace bullying is not workplace misbehavior, will not be action is taken. unlawful per se, there are a multitude tolerated. of already recognized claims that • Train supervisors. A business’s first These suggestions are not novel, could apply to abusive workplace line of defense against workplace bul- since many companies already have conduct, such as assault, battery, lying is its frontline supervisors. Com- practices or policies like them in place defamation, harassment, intentional panies that already provide periodic to address discrimination or harassment infliction of emotional distress, and anti-harassment and anti-discrimina- complaints. Addressing workplace mis- negligent supervision. tion training to their managers could conduct, whether in the form of bully- • Bullying can increase a compa- simply add a workplace bullying com- ing or unlawful harassment or discrimi- ny’s medical-related expenses. ponent to that training. With the nation, is nonetheless a business Bullying victims are more susceptible right training, supervisors can detect imperative. to illness. In turn, they may need workplace bullying and know how to medical attention to treat emotional address it effectively. Recently, Cali- Susan L. Nardone is a director and physical injuries, especially if the fornia (New Jersey’s west coast twin and James J. La Rocca is an associate in bullying is severe. This can increase a when it comes to protecting employ- the employment and labor law department business’s healthcare costs, as well as ee rights) passed legislation that at Gibbons P.C., where they provide strate- its workers’ compensation rating. requires employers to add training gic counseling and representation to their and education on the prevention of clients on all aspects of the employment What Companies Should Be Doing to abusive conduct to the already relationship. Nardone is also an experi- Address Bullying mandatory training of supervisors on enced mediator. Recent studies suggest that workplace preventing sexual harassment. bullying may be more common than • Provide a reporting mechanism ENDNOTES companies think. According to a Feb. for victims. As seen with other 1. Visit shrm.org to access the sample 2012 SHRM survey, 51 percent of organ- forms of workplace misconduct, an policy. izations have reported incidents of employee may fear reporting a bully, 2. See “Definition of Workplace Bullying:” at workplacebullying.org. workplace bullying. Additionally, a Feb. especially if the bully is his or her 3. David C. Yamada, Emerging American 2014 survey by WBI shows that 27 per- supervisor. Accordingly, a company Legal Responses to Workplace Bullying cent of American workers have experi- should provide employees with a (March 1, 2013), Temple Political & Civil enced workplace bullying. comfortable, accessible means of Rights Law Review, Vol. 22, p. 329, 2013; Suffolk University Law School Research There are many options available to reporting bullying without fear of Paper No. 13-7. Available at SSRN: businesses to prevent workplace bully- retaliation. Many companies already ssrn.com/abstract=2242945. ing. Of course, every workplace is have a mechanism for reporting 4. See Ingraham v. Ortho-McNeil Pharm., 422 N.J. Super. 21, 23 (App. Div. 2011) (stat- unique, and employers should formu- internal complaints, whatever the ing that “the workplace has too many late a strategy that best aligns with their subject matter, and adding bullying personal conflicts and too much behav- ior that might be perceived as uncivil for culture and goals. to the list makes good sense. the courts to be used as the umpire for • Establish a process for review- all but the most extreme workplace dis- • Develop a no bullying philoso- ing complaints and taking putes”); see also Sarmiento v. Montclair State Univ., 513 F. Supp. 2d 72, 89 (D.N.J. phy. An anti-bullying philosophy responsive action, when neces- 2007) (explaining that courts are not should explain what workplace bul- sary. Bullying allegations should be “super-personnel departments”). lying is and why the company takes addressed in a timely fashion and
32 NEW JERSEY LAWYER | December 2014 NJSBA.COM