The February 14, 2014, release of the National Football League’s investigation report (see footnote 1) of the resignation and hospitalization of Miami Dolphins’ offensive lineman Jonathan Martin, and the suspension of left guard Richie Incognito for allegedly bullying him, has renewed interest in anti-bullying legislation. According to the Wells Report, Martin was subjected to a “persistent pattern of harassment” by Incognito and two others that was “consistent with a case of workplace bullying.” Specifically he was subjected to insulting language and ridicule, sexually explicit and graphic comments about his sister and mother, and racially offensive taunts. He was also required by Incognito to pay a “fine” of $10,000 for not attending an outing in Las Vegas. After an exhaustive investigation, the Wells Report concluded that “Martin was indeed harassed” and encouraged the “creation of new workplace rules and guidelines that will help ensure that players respect each other as professionals and people.” (Wells Report at p. 140)

Advocates of anti-bullying legislation may find the Wells Report helpful in their quest for regulation of workplace conduct. To date, 26 states have introduced anti-bullying legislation, but none has passed. This may change, however, with New York Senate Bill 3863 (see footnote 2) emerging as a strong possibility for passage. Introduced by Senator Diane Savino on February 25, 2013, and referred to the Committee on Labor for the second time on January 8, 2014, the bill would amend the Labor Law by adding a new article 20 D, captioned “Healthy Work Places,” to establish a civil cause of action (see footnote 3) for employees subjected to an “abusive work environment” unrelated to a legally protected characteristic. The proposed legislation would presumably provide legal redress for those subjected to an “abusive work environment” not covered by state or federal discrimination laws or employment related tort actions.

According to the bill, an “abusive work environment” occurs when an employer or one or more of its employees “acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm or both.” “Abusive conduct” is defined as “acts, omissions, or both that a reasonable person would find abusive, based on the severity, nature and frequency of the conduct.” Examples include, but are not limited to, “repeated use of derogatory remarks, insults, and epithets; verbal, non verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance.” Single acts, unless especially severe and egregious, would not constitute abusive conduct. Retaliation against an employee who has opposed a practice made unlawful under the bill or “has made a charge, testified, assisted, or participated in any manner in an investigation… including but not limited to, internal complaints and proceedings, arbitration and mediation proceedings and legal actions” is specifically prohibited.

Relying on standards developed by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the bill provides employers with an affirmative defense in abusive work environment cases. The employer may escape vicarious liability, where no adverse action has been taken, if the employer: “(1) exercised reasonable care to prevent and correct promptly any actionable behavior; and (2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities by the employer.” Employees may face individual liability for a violation of the ban on bullying unless they establish that they acted at “the direction of the employer, under actual or implied threat of an adverse employment action.”

The bill provides another affirmative defense where “(1) the complaint is based on an employment action reasonably made for poor performance, misconduct, or economic necessity; (2) the complaint is based on a reasonable performance evaluation; or (3) the complaint is based on an employer’s reasonable investigation about potentially illegal or unethical activity.”

Under the bill, if a court finds a violation, it may enjoin the defendant from engaging in the prohibited conduct and may order an array of remedies, including reinstatement, removal of the offending party from the plaintiff’s work environment, lost wages, front pay, medical expenses, and compensation for pain and suffering and emotional distress. Punitive damages can be awarded against the employer where the prohibited conduct was found to be “extreme and outrageous.” Attorney fees may also be awarded.

The legislative proposals can certainly cause significant problems for employers. For example, what is “abusive conduct”? Is it abusive if a warehouse supervisor yells at an employee to get back to work? Is it abusive for a senior attorney in a law firm to tell a new lawyer that a brief written by the new lawyer is so poorly written that an eighth grader could have done better? We might all agree that managers should not yell or denigrate employees, but when does a tough boss become an abusive boss? That is a difficult question regardless of how precise a statutory definition of “abusive conduct” might be.

Given the threat of passage and the expansive range of possible remedies, employers should start to consider the possible content of an anti-bullying policy and related management training. More specifically, an effective policy would ban bullying and provide easily understood examples of inappropriate behavior such as those discussed above. The policy should include a user friendly internal complaint procedure with several go-to persons to whom complaints could be made or a confidential 800 number. Complainants should be assured that a prompt investigation will take place and that retaliation against them for making a complaint is prohibited.

In conclusion, whether or not the New York bill is passed, banning bullying will make for a more comfortable and productive workplace.