Do you have supervisors who are commonly known in the workplace to be “difficult” to work with? Do you have managers who yell at their staff on a regular basis? Do you have employees who like to tease co-workers? If you responded “yes” to any of these, upcoming workplace bullying legislation may impact you and your business.
In 2010, Zogby International conducted a poll which indicated that 34.4% of employees (53 million American) reported being personally bullied in the workplace. Workplace bullies were found to be both men and women. As of 2012, New Jersey, New York and 19 other states had legislation pending to prevent workplace bullying. California was the first state to introduce such a bill in 2003, but recently New Jersey and New York issued legislation that will change the landscape for employers. For the most part, the bills that have been introduced require medical proofs that the employee has indeed suffered a medical or emotional condition as a result of an “abusive” work environment.
Specifically, the New Jersey bill, sponsored by State Senator Linda R. Greenstein, is known as the “Healthy Workplace Act” and was introduced in January 2012. The Bill makes it an unlawful employment practice for an employer to subject an employee to abusive conduct or to permit an abusive work environment. Under the Bill, the term “abusive conduct” is defined to include malicious conduct of an employer or an employee in the workplace that a reasonable person would find hostile, offensive or unrelated to an employer’s legitimate business interest. Abusive conduct under the act includes repeated infliction of verbal abuse including the use of derogatory remarks, insults or the gratuitous sabotage or undermining of an employees work performance.
The Bill makes it an unlawful employment practice for an employer to retaliate against an employee because he has brought legal action or because he has charged, testified, assisted or participated in any manner in an investigation or proceeding relating to the abusive conduct or work environment. The penalty for employers is stiff: up to $25,000 for knowingly and willingly violating any provision of the Bill. Significantly, employers can assert an affirmative defense if the employer can show that he exercised reasonable care to prevent and promptly correct the abusive environment. The Bill was referred to the Senate Labor Committee where it remains now.
Similarly, in New York, the New York Healthy Workplace Act proposes to amend the labor law by establishing legal redress for employees who have been harmed by workplace bullying and to provide legal incentive to employers who prevent and respond to mistreatment of employees at work. Like the New Jersey Bill, New York’s proposed act limited damages for emotional distress to $25,000 but also disallows punitive damages in cases where no negative employment decision – including termination of the abused employee, disciplinary action, or resignation as a result of the abusive treatment — has occurred.
It remains to be seen whether these anti-bullying legislations will ultimately pass anytime in the near future. However the threat of this legislation—as well as a burgeoning general awareness by the public—should put employers on notice that they need to take stock of their workplace, revise their employee handbooks and perhaps start considering employee training, so that they can be prepared to defend against what will inevitably be a deluge of new claims if and when these new laws pass.