New England Biz Law Update
David C. Yamada is on a mission.
Upon learning one of his friends was being mistreated by her bosses, Yamada decided to tackle the problem of workplace bullying head-on by drafting model legislation that would offer employees and employers legal protection against psychologically abusive behavior.
But Yamada’s mission is proving difficult. He’s found that each time an anti-workplace-bullying bill is introduced to a state legislature, it is vehemently opposed by the local chamber of commerce, which fears such laws could place a burden on businesses.
Yamada, a Suffolk University Law School professor, maintains it is in the best interest of the business community to directly confront the issue.
“There was a study of 9,000 federal employees that found the cost of workplace bullying was $180 million,” reports Yamada. “Twelve percent of the people studied said they had changed their jobs.”
To combat the problem of a supervisor or co-worker inflicting mental cruelty onto an employee on a repeated basis, Yamada has written the “Healthy Workplace Bill.” The model legislation requires a plaintiff to “show the bullying behavior was not only malicious, but personally hurtful in terms of demonstrable psychological harm,” he says, adding that “it probably would require a formal diagnosis by a mental health care expert.”
His interest in the subject was spurred in 1998, when a friend confided in him about the way she was being treated by her supervisors.
“She was the ultimate ‘team-player’ type of employee,” recalls Yamada. “But they treated her horribly – angry, hostile looks; silent treatment; keeping her out of the loop; unfair criticism; the works. I sent her a copy of an online article I’d read about workplace bullying, and a few days later she called me and said, ‘This is exactly what is happening to me.’”
Yamada says he quickly realized that no one had done a serious examination of what legal protections might be available for the targets of workplace bullies.
Today, Yamada has become the country’s go-to guy on the legal issues surrounding workplace bullying. He’s penned academic articles, been quoted in numerous news reports, spoken at legal and mental health conferences, and recently founded the New Workplace Institute, which pledges to promote “healthy, productive and socially responsible workplaces.”
Meanwhile, Yamada says, the complaints keep tumbling in.
“Many friends have told me about their experiences as bullying targets, and literally hundreds of people have sent me unsolicited descriptions of what they’ve endured at work.”
Uphill battle?
While workplace bullying has few fans, there are those who wonder whether there is anything that truly can be done about it.
Some employment attorneys worry that anti-bullying laws could open the door to frivolous lawsuits. And even some lawyers who represent employees believe their clients have few options unless they belong to a protected class and the behavior in question is motivated by racial or gender bias.
Yamada reviewed three years’ worth of state court claims in which employees had sued either their employer or a co-employee for severe emotional distress in bullying-type situations. He says he discovered that “garden-variety” bullying of even the most severe kind rarely led to successful claims.
“Most plaintiffs lost before they got to trial, through summary judgment or motions to dismiss, because the court held that the behavior they faced was not severe enough to meet the requirement of ‘intentional infliction of emotional distress,’” he says.
“Anecdotally, it seems that many individuals that are trying to obtain workers’ compensation for some kind of workplace-induced psychiatric disability really have difficulty getting benefits,” said Yamada. “Often times, those claims are contested, and in many of these instances the individuals simply don’t have the wherewithal to proceed with the appeals process. Depression or post-traumatic stress disorder undercuts an individual’s ability to follow up on [his] legal rights. So once they get that first notice their claim is being contested, they give up. They don’t have a lawyer or know where to turn.”
Yamada says that employees who quit their jobs over bullying also may be denied unemployment claims.
The critics
Yamada’s model legislation – which would make employers liable for employees who are subjected to abusive work situations – has been introduced in several states, including California, Hawaii, Oklahoma and Oregon. In every case, the legislation died in committee.
Yamada says it is not surprising that such a relatively radical concept hasn’t caught fire yet. He hopes discussions of the proposed law will spur awareness about the issue.
At a recent Massachusetts Bar Association seminar devoted to the subject, some employee-side attorneys complained the proposed law would not spur legal advocacy because it caps an employer’s liability at $25,000 when the bully-like behavior does not result in a “negative employment decision” – such as a firing or forced resignation.
“The fact that employer- and employee-side attorneys have criticized the bill makes me think that maybe we’re on the right path. In writing a bill like this, you don’t want to try to nuke employers,” says Yamada, who describes the cap as a compromise point. “But, on the other hand, you want to provide much more opportunity for severely bullied workers, because currently most of them have very little recourse.”
Rather than create a liability, the only piece of legislation on the subject ever proposed in Massachusetts called for a state-sponsored study of workplace bullying and for employers to put into place company policies against bullying.
Although the bill – written by a bullying target who consulted with Yamada – died in committee last session, Rep. Ellen Story, D-Amherst, pledges to reintroduce it in the upcoming session.
“We’ll keep getting co-sponsors,” she says, echoing Yamada’s view that even unsuccessful legislation creates a dialogue.
But some wonder whether legislation is the appropriate venue to address the issue.
“Sexual harassment is a relatively recent concept, but it is tied to a longstanding protected class – gender,” explains Paul V. Holtzman of Boston, co-chair of the Boston Bar Association’s Labor & Employment Law Section. “The dramatic difference about workplace-bullying claims is they’re not tied to any protected classes. If one is bullied because of their race or age, there is [already] protection. This would dramatically extend the law.”
According to Holtzman, proponents “would say this is an extension of workplace safety, which would require protections against physical injury in a complicated regulatory scheme like OSHA. But this would be a major departure from existing law that only discrimination targeted at an employee because of a characteristic that is identified is actionable.”
Holtzman wonders how thorny definitional issues could be addressed, noting that supervisors can be on the receiving end of sexual harassment. “Could they be bullied by an underling?” he asks. “I think the overall goal of enhancing respect and safety is a good one. But there’s a legitimate concern to be raised about whether this is susceptible to being addressed through litigation or by statute.”
And simply capping damages would not make the concept palatable to employers, Holtzman believes.
“When you talk about any employment litigation, damages are a major concern, but the cost of litigating is a major concern also,” he says. “This creates a new exception to the ‘at-will’ employment rule.”
Management-side employment lawyer Bret A. Cohen goes even further, arguing that the proposed law would attempt to “legislate good conduct.”
That, says Cohen, goes beyond “what any employer should be asked to deal with. Employers have enough burdens on them already, particularly … on small to midsized companies, who don’t generally have well-developed HR departments.”
Cohen suggests the free market should be allowed to “work its magic. If good employees are being mistreated, they’ll go elsewhere.”
The Boston lawyer also points out that even in Europe, where the subject of workplace bullying has received more attention than in the U.S., no country has gone so far as to create new liabilities.
Cohen wonders how big a problem bullying actually is.
“As an outside employment counsel to 60 companies, I can only think of a handful of times where this issue has come up,” he says. “My practical experience is at odds with the statistics I’ve read.”
Turn to the handbook
Some attorneys say employee handbooks are the appropriate place for employers to take a stand on the matter.
Boston lawyer Evelyn A. Haralampu, who serves as a board member for the New Workplace Institute, says the issue could be addressed under the standards of conduct a company expects its employees to abide by, or in the ethics provisions of a company’s policies.
“Essentially, the way I’d consider working it is that we expect certain standards to the extent that, if anybody doesn’t live up to these standards, it’d be grounds for firing,” says Haralampu. “You tell people upfront that they are expected to behave in a civil and collegial manner.”
But others wonder whether such policies could create corporate liability.
While it wouldn’t hurt to have policies in place “that promote dignity and fair treatment in the workplace,” Holtzman says, “you [could] have potential claims about whether a policy creates an enforceable right, depending on how it is drafted, when it is in an employee handbook.”
With the likelihood of an anti-bullying law still only a remote possibility, employer-side attorneys could decide to consider the issue when examining internal company matters.
“It’s not a bad idea for employers to look at this issue from a management perspective,” advises Holtzman. “If studies in this area are correct, bullying may well be an impediment to workplace safety, and management might choose to address it.”
Haralampu suggests that better management practices, not a law, best address the problem. She even raises the possibility of psychological testing for potential employees, although she notes that such tests are “a tricky area of the law,” with some forms of testing “definitely not permitted.”
Haralampu also suggests looking at the issue from an economic standpoint.
“You may have bullying situations where there’s some subtle behavior going on, but the effect is pretty clear: You have a 300 percent turnover in a department in a year,” she says. “An employer shouldn’t tolerate that, because it is costing the company too much money.”
Cohen agrees that companies should be on guard.
In one instance, a corporate client of Cohen’s found one of its managers was highly abusive to his subordinates. The client’s solution to the problem: It withheld the senior executive’s six-figure bonus and required him to attend sensitivity training.
“After we did that, he had an about-face,” says Cohen. “He didn’t appreciate what he was doing or the effect it was having on the people who worked for him. Now, by all accounts, he’s a model executive and has moved up the ladder.”
Yamada insists that several decades down the road, bullying victims will have obtained protection the same way that sexual harassment victims have in recent decades.
“In the 1970s and ‘80s, sexual harassment was something that a lot of people were gaining an increasing understanding of, but it wasn’t until the 1980s when we saw the courts recognize that sexual harassment was indeed a form of discrimination,” he says.
