Many States now mandate training by employers on the prevention of "
abusive conduct".
Congratulations!
See also:
California Adds 'Abusive Conduct' to Sexual Harassment Prevention Training for Supervisors
Healthy Workplace Bill
Now, where are you on this, Governor Cuomo? We desperately need a law like this in New York State.
Betsy Combier, Editor
President,
ADVOCATZ
Comstock’s:
Calif mag scrutinizes new workplace bullying law
This Time, It’s Personal
Will legislation to protect employees from workplace bullying stifle
demanding managers?
By Steven Yoder, Comstock’s, March 31, 2015
Carrie Clark, 63, says bullies
aren’t confined to playgrounds. Sometimes, they run the whole school.
In 1995, Clark directed an English
as a Second Language program in West Sacramento’s Washington Unified School
District. An influx of foreign students was forcing her staff to work
ever-longer hours. She wrote several reports to the district superintendent
documenting the extra load and asking for more help. She got no response, she
says. So her teachers union representative suggested she put together a
petition signed by program staff.
That got a reaction, but not the one
she wanted. The superintendent took Clark off of the school’s committee of
department chairs and canceled and consolidated classes. Clark says he called
her house and left an odd, garbled message, and one day after a meeting, he
followed her into an empty hallway. Towering over her, his face a foot from
hers, he screamed that he wanted “no more petitions!”
Scared, Clark quit a few weeks
later. She developed tremors in her right side, which she still has, started
having heart palpitations and couldn’t sleep. Today, when she talks about what
happened, her speech slows to a crawl and her voice quavers like a warped
record. A Sacramento occupational medicine specialist diagnosed her with a
post-traumatic stress disorder related to her job. After a 20-year teaching
career, she’d never set foot in a classroom again. In 2002, she won a $150,000
workers’ compensation claim against the district.
There’s evidence that the
superintendent targeted others who crossed him. He took a job in a district
near Yuba City, and in January 1999 the teachers association president there
told The Valley Mirror that the superintendent verbally threatened her
and that she’d asked a court for a restraining order. She also told a reporter
that she was having panic attacks for the first time in her life. (The
superintendent, now retired, keeps an unlisted phone number and didn’t respond
to a certified letter sent to his address requesting an interview.)
No state offers workers legal protections
against intimidation on the job, but advocates around the country have turned
up the heat and are demanding new laws. But critics say legislation would
stifle managers and open the floodgates to lawsuits. All sides agree that if
businesses ignore the issue, new legislation could well force them to change.
The Push for a Healthy Workplace
Bullies do more than demand that
work get done. They threaten, humiliate or intimidate for reasons unrelated to
job performance. The Society for Human Resource Management, which represents
human resource professionals nationally, describes workplace bullying as a
pattern of behaviors that include persistently singling out someone for
criticism, shouting in private or public, slinging personal insults, ignoring
or interrupting people in meetings or assigning menial tasks that aren’t part
of an employee’s normal responsibilities.
If recent polls are any guide, many
organizations tolerate such behaviors. In a 2011 SHRM survey of 400 randomly
selected human resource professionals, more than a quarter reported having been
bullied themselves at work, 73 percent said they’d seen verbal abuse on the job
and 5 percent said they’d seen physical assaults.
Bullying hurts businesses and
workers alike. Companies with ruffians have higher absenteeism and turnover,
decreased morale, diminished trust among coworkers and lower productivity,
according to a host of studies. Workers who are targeted experience a range of
negative health outcomes, including sleeping problems, emotional exhaustion,
PTSD, hypertension and autoimmune disorders. Most targets end up leaving their
jobs; WBI research indicates that 80 percent end up quitting, getting fired or
being transferred.
“Other forms of mistreatment, like
child abuse and domestic violence, are societal taboos now,” says WBI founder
Gary Namie, a social psychologist and author of two books on the topic. “This
is the last form of abuse that society tolerates.”
As advocates have come forward to
demand protection, workplace bullying has become the hottest area of employment
law. Variations of the WBI’s Healthy Workplace Bill have been introduced in 28
states, though no legislature has yet enacted one. Such a bill would allow
targets to sue perpetrators and, in some cases, their companies. At least 80
California cities and towns issued proclamations last October declaring a
“Freedom From Workplace Bullies Week.” Several countries, including England,
Sweden, Australia, France, Canada and Germany, already have laws banning
workplace oppression.
Last September, California became
the first state to require employers to train their workers on the problem. As
of January, all companies with 50 or more employees must include information on
preventing “abusive conduct” in their biannual sexual harassment trainings.
The new law, Assembly Bill 2053, offers
no remedy to targeted employees, and Namie says it’s not a substitute for the
Healthy Workplace Bill. But it could be an opening. Amelya Stevenson, president
of human resource consulting firm e-VentExe in Granite Bay, is confident
stronger state legislation will pass in a year or two.
Wiggle Words
Skeptics argue that trying to outlaw
bullying won’t work. Michael Kalt, government affairs director for CalSHRM, the
state SHRM chapter, doesn’t dispute the seriousness of the problem. But too
much will be in the eyes of the beholder, he claims. “What if a boss yells at
his employees when there’s a deadline? Some might consider that stern. What
about micromanaging? Some would call that just great attention to detail. Can
you discipline an employee for making mistakes?” Kalt asks.
Kalt concedes that none of those
examples would be enough to subject an employer to a lawsuit under the Healthy
Workplace Bill. The bill’s language exempts any action an employer takes as a
result of documented poor performance or misconduct by an employee. Still, Kalt
claims it would unleash a torrent of lawsuits.
“There are lots of wiggle words that
could end up in legislation,” says Kalt. “And then we’ll spend years litigating
what those mean.” Training like that required by AB 2053 will help employers
change their work cultures, he argues.
But Stevenson says most companies
aren’t paying attention to the issue. None of her clients have asked her to
help them develop an anti-bullying policy. Employers are waiting for guidance
from lawmakers on what needs to go into such a policy, she says: “When the law
explains what managers can and can’t do, that will help HR managers [craft a
policy]. That’s what tends to happen,” she says.
Getting Ahead of New Legislation
Kalt wants companies to go beyond AB
2053’s requirements to preempt a stronger law. At a minimum, businesses should
be updating their codes of conduct to proscribe bullying and train supervisors
on the new rules, he says. They also should create complaint procedures, ensure
that employees know about them, and start disciplining offenders based on the
new policy.
One manager has made stopping
bullies a top priority in her organization. Ann Wrixon saw plenty of managers
bully staff when she worked in Silicon Valley — it eventually drove her out of
the tech field and into social work. She’s now executive director of the Concord-based
non profit Independent Adoption Center.
In 2011, a few staff told her that
malicious gossip was dividing her team. So she pulled together her top managers
and with Namie’s help built an antibullying infrastructure. Today, a dedicated
team handles only complaints about workplace abuse. If someone thinks they’re
being targeted, they can talk in confidence to a team member who will approach
the accused person to get their side.
If no resolution results, the team
member sits with both parties to discuss solutions. If either still leaves
unsatisfied, the case goes to a higher-level team member, who writes a report
that goes to Wrixon for a decision about appropriate steps. During orientation,
new staff get a one-on-one meeting with their managers to discuss the policy
and the complaint process.
The center has had to use the new
system for only one bullying case so far. The offender was reprimanded and
later resigned. Wrixon thinks just having a policy and training program
prevents malicious behavior from emerging in the first place. She also says the
impacts on employee morale and the work atmosphere have been positive and
dramatic — staff report being happier and are getting more done than before,
with little or no gossip.
Of the managers she worked for in
the tech field, she says, “They thought they got brilliant work out of their
people, but I always thought they got brilliant work despite their bullying,
not because of it.”
###
WBI: Carrie Clark is co-founder of the California Healthy Workplace Advocates. She
helped introduce the first HWB in the country in California in 2003. She is
California Co-Coordinator for the WBI Healthy Workplace Bill. You can see
Carrie as advocate in these You Tube video clips.
California lawyers respond to new abusive conduct training law
LINK
Law Takes Aim at Workplace Bullying, Raises Questions
By Laura Hautaia,
Los Angeles Daily Journal, Sept. 17, 2014
What counts as bullying in the workplace?
While the concept may be relatively new, managers will have to undergo training on preventing abusive conduct at work once a new law goes into effect in January. The training will come along with other required lessons on preventing sexual harassment and discrimination, but it’s different in one important way: bullying isn’t illegal in California. For now.
Attorneys say
AB 2053, which Gov. Jerry Brown signed in August, might open the door to making abusive conduct illegal, opening a new category of liability for employers.
“There’s a feeling that there should be a way to prevent that kind of destructive behavior, because it does hurt people when it’s extreme enough, and it causes economic damage,” said Margaret H. Edwards, a shareholder at Littler Mendelson PC who has researched the advent of anti-bullying laws worldwide.
At the moment, the required training might still come into play in a court case if workers sue for harassment or intentional infliction of emotional damage in the workplace, attorneys said.
Whether or not employers provided adequate training on abusive conduct, said Chaya M. Mandelbaum, a partner at Rudy, Exelrod, Zieff & Lowe who represents workers, “could be a very relevant piece in looking at the culture of the workplace.” Edwards said the new requirement heralds wider recognition of bullying as a problem that can be addressed with laws. Indeed, other states are considering bills that address bullying in schools, and Tennessee passed a law encouraging public employers to create anti-bullying policies.
What’s more, she noted, laws have passed in Canada, the UK and Europe that address bullying in the workplace. “I think part of this is because of work that has been done that comes out of the harassment arena and a desire to try to address destructive behaviors in the workplace that don’t quite fall into the traditional harassment and discrimination categories,” Edwards said.
Some of that work has been done by Gary Namie, a Washington State social psychologist who
advocates for anti-bullying legislation. He worked to get a more comprehensive law banning workplace bullying in California in 2003, but the law didn’t pass. Namie said his organization, the Workplace Bullying Institute, talked with California Assemblywoman Lorena Gomez as she authored AB 2053, but that the resulting bill was watered down from what he hopes to see eventually become the law.
“The law is a baby step toward recognizing the impact of workplace bullying defined as abusive conduct,” Namie said. Namie compares abusive conduct at work to domestic abuse. Rather than isolated incidents of cruelty, he said, bullying is a pattern that systematically beats down an employee.
Employment attorneys agreed with this description. “It’s vicious a lot of times,” said Kathryn B. Dickson. What’s more, she said, everyone at the workplace can suffer when bullying takes place. “It has impact on morale and productivity.” But Dickson also noted that while the law defines abusive conduct, naming it in the workplace might still be difficult.” “It gets very mushy around the edges,” she said. However, she compared the task of defining workplace bullying to the questions that surrounded the idea of sexual harassment when it was first litigated in courts. “People said how are we going to say what harassment is? That worked out.”
One test case emerged in 2006, when a judge in London ruled in favor of a former employee of DB Services (UK) Ltd., a UK subsidiary of Deutsche Bank, who said she was systematically bullied at work until she suffered two bouts of Major Depressive Disorder. In a detailed, 46-page decision, High Court Justice Robert M. Owen said the bullying was harassment under the country’s Protection from Harassment Act of 1997, and that the company should have done more to prevent it.
The plaintiff, Helen Green, said coworkers engaged in “petty” bullying conduct and went out of their way to exclude her from conversations, lunches, work-related email chains and more. Green even recounted that one coworker made a raspberry sound every time she took a step while walking across the office. “Many of the incidents that she describes would amount to no more than minor slights,” Owen wrote. “But it is their cumulative effect that has to be considered.” What’s more, the company was privy to information about Green’s mental health history and could have known she would be vulnerable to such bullying, he ruled.
Such situations aren’t uncommon in American workplaces, plaintiffs’ attorneys said. Mandelbaum said many people call seeking legal representation, only to learn what they experience at the hands of a coworker or supervisor is not illegal. What’s more, often it’s bullying that motivates someone to sue for sexual harassment or discrimination in the first place, he said. “It’s that kind of conduct that underlies their feelings and their motivation to go through what they need to go through to enforce their rights legally.” Mandelbaum said.
Tags:
AB2053,
abusive conduct,
california,
education,
sexual harassment,
supervisor training,
workplace bullying law
Ingrid Fredeen, J.D., Vice
President of Advisory Services, NAVEX Global
New
California legislation requires additional abusive conduct training obligation
for managers covered under AB 1825.
SNAPSHOT
· Who Does it Impact? All employers that conduct business
in California and have 50 or more employees must comply with AB 2053 (and AB
1825).
· What Do I Need to Do? Employers are required to provide
managers with two hours of harassment training (under AB 1825) and additional
training on prevention of abusive conduct (under AB 2053) every two years—and
within six months for newly hired or promoted managers.
WHAT YOU NEED TO KNOW
Background
Since
2004, companies conducting business in California that have 50 or more
employees have been required to provide their mangers with sexual harassment
prevention training under California state law AB 1825.
On
September 9, 2014, California Governor Jerry Brown signed AB 2053 into law,
mandating that employers covered under AB 1825 add prevention of abusive
conduct (bullying) training into their current workplace harassment training
program.
Navigating
the Gray Areas: What AB 2053 Does—and Does Not—Include
· The law does not provide guidance on what must be covered in
the training, or identify any minimum training time requirements.
· Like harassment training under AB 1825, AB 2053 training can
be delivered either live or online.
· The law defines “abusive conduct” to mean, “…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.”
The
descriptive language in AB 2053 is very broad and includes the following
categories of conduct:
· Like harassment, a single act is not considered to be
abusive conduct, unless it’s “severe and egregious”
· 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
· AB 2053 does not explicitly prohibit “abusive conduct.” It
does mandate prevention training on this topic.
· The gratuitous sabotage or undermining of a person’s work
performance
What
Training Changes Will I Need to Make to Comply With AB 2053?
To
effectively cover this content in a harassment course,
organizations will need to add new content to their existing AB 1825 compliant
training programs. The new training should:
· Draw a distinction between prohibited harassment and abusive
conduct (which is not technically unlawful harassment)
· Explain to managers that abusive conduct is not tolerated
and must be addressed
· Help managers understand how to spot abusive conduct
· Help managers understand how to respond when an employee
raises a concern about abusive conduct
· Hold employees and managers accountable should they engage
in abusive conduct
NAVEX GLOBAL’S AB 2053 TRAINING
SOLUTIONS
NAVEX
Global is committed to providing our clients with workplace harassment training
that complies with California training requirements, including the new
requirement under AB 2053. Please contact your NAVEX Global account executive,
or e-mail info@navexglobal.com with
any questions— or to discuss your organization’s training needs and challenges.
ADDRESSING ABUSIVE CONDUCT BEFORE
IT BEGINS: SIX STEPS TO TAKE TO STRENGTHEN YOUR CULTURE OF COMPLIANCE
The
new legislation is not the only reason to address abusive conduct in the
workplace: workplace bullying is a drain on productivity and employee morale.
Left unaddressed, abusive conduct can—and often does— quickly escalate into
unlawful harassment.
Some
simple things employers can do to address abusive workplace conduct include:
2.
As outlined above, train managers
and employees about what is expected of them. Consider deploying short-form or
burst training, deploy a full-length course on workplace violence prevention or
add content to your current workplace harassment
training.
3.
If you have employees and managers
whose abusive behavior has been tolerated, let them know that the rules are
changing and they will need to adjust their behavior accordingly.
5.
Investigate all
allegations of abusive conduct thoroughly and promptly; hold employees and
managers responsible when they violate rules.
6.
Assess your workplace culture—find
out if bullying and abusive conduct continues to be an issue, and then devise a
plan to improve your approach.
ABOUT THE AUTHOR
Ingrid Fredeen, J.D., Vice President of Advisory Services,
NAVEX Global.
Ingrid
Fredeen, J.D., Vice President of Advisory Aervices, has been specializing in
ethics and legal compliance training for more than 10 years. She has been the
principal design and content developer for NAVEX Global’s online training
course initiatives utilizing her more than 15 years of specialization in
employment law and legal compliance. Prior to joining NAVEX Global, Ingrid
worked both as a litigator with Littler Mendelson, the world’s largest
employment law firm, and as in-house corporate counsel for General Mills, Inc.
ABOUT NAVEX GLOBAL
NAVEX Global’s comprehensive suite of ethics and compliance
software, content and services helps organizations protect their people,
reputation and bottom line. Trusted by 96 of the FORTUNE 100 and more than
12,500 clients, our solutions are informed by the largest ethics and compliance
community in the world. For more information, visit www.navexglobal.com.
