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TRI-COUNTY SHRM CONFERENCE
Bullying In The Workplace – A New Frontier of Liability
************** 2011 UPDATE
Recent Legal, Legislative, and Newsworthy Developments Since
2010David E. Block, Esq.Jackson Lewis LLP
2 S. Biscayne Boulevard, Suite 3500Miami, FL 33131
2011 UPDATERecent Legal, Legislative,
and Newsworthy Developments Since 2010
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TRI-COUNTY SHRM CONFERENCE
NEW REGULATIONS AND ADMINISTRATIVE RULINGS
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NLRB Posting
NLRB Activism
NLRB reconsidering standard for allowing employers to deny access to union organizers.
Greater focus on “protected, concerted” activity, especially with social media, e.g. FaceBook
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TRI-COUNTY SHRM CONFERENCE
ADA
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TRI-COUNTY SHRM CONFERENCE
U.S. DEPARTMENT OF LABOR REVISES
TIP CREDIT – RULE
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NOTICE TO EMPLOYEES OF TIP
CREDIT
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TRI-COUNTY SHRM CONFERENCE
You will receive an hourly wage of $__________ from [the company].
[The company] will credit $__________ per hour toward your wages based on the tips you receive. This credit cannot exceed the tips you actually receive. Your hourly wage plus this credit must be at least equal to the minimum wage.
All tips you receive must be retained by you, except for tips contributed to a valid tip pooling or tip sharing arrangement limited to employees who customarily and regularly receive tips.
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The tip credit will not apply to any employee who has not been informed of these requirements.
By signing this form, I hereby acknowledge that I have read this Notice to Tipped Employees and that I have received a copy of this document for my reference.
Employee’s Name (Printed) Date
Employee’s Name (Signed)
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TRI-COUNTY SHRM CONFERENCE
SUPPLEMENTAL NOTICE TO TIPPED EMPLOYEES Beginning on [date], you will receive an hourly wage of
$__________ from [the company]. Beginning on [date], [the company] will credit $__________ per hour
toward your wages based on the tips you receive. This credit cannot exceed the tips you actually receive. Your hourly wage plus this credit must be at least equal to the minimum wage.
By signing this form, I hereby acknowledge that I have read this Supplemental Notice to Tipped Employees and that I have received a copy of this document for my reference.
Employee’s Name (Printed) Date
Employee’s Name (Signed) Date
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SUPREME COURT RULINGS
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ARBITRATION vs. NO CLASS ACTIONS
AT&T Mobility LLC v. Concepcion, ____ U.S. ____ (04.27.11) (Supreme Court holds California rule prohibiting class action waivers in arbitration agreements is pre-empted and invalidated by FAA).
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Associated Retaliation Claims
Employee fired because his fiancé stated a claim for unlawful retaliation.
Thompson v. North American Stainless, ___ U.S. ___ (01/24/11).
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TRI-COUNTY SHRM CONFERENCE
CAT’S PAW LIABILITY
Holding that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”
Staub v. Proctor Hospital, ___ U.S. ___ (03.01.11)
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TRI-COUNTY SHRM CONFERENCE
BACKGROUND CHECKS ON GOVERNMENT CONTRACTOR DO NOT
VIOLATE THE CONSTITUTION
Unanimously ruling that NASA's standard background check, as applied to contract employees, does not violate a constitutional right to informational privacy.
NASA v. Nelson, ___ U.S. ___ (01.19.11).16
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MEETING MR./MS. RIGHT
Match.com Litigation
Could be Coming to Your Company
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match.com
The company is in the business of introducing individuals for the purpose of dating.
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match.com
Is match.com all that different than employer.com looking for an employment relationship?
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match.com
THE FACTSJane Doe has used match.com for 5
years.She is introduced to “X” via match.com.Date #1 goes fine.Date #2 turned violent.“X” had a history of sexual battery
convictions.
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match.com
Is match.com responsible?
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TRI-COUNTY SHRM CONFERENCE
Bullying In The Workplace – A New Frontier of Liability
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What We Will Discuss
What is bullyingImpact of bullying on the workplaceRecent legislative and court updatesStrategies to address bullying in the
workplaceExamples and scenarios
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What is Bullying?
Mistreatment severe enough to compromise a targeted worker's health, jeopardize her job and career, and strain relationships with friends and family.
It is a laser-focused, systematic campaign of interpersonal destruction.
It has nothing to do with work itself. It is driven by the bully's personal agenda and actually prevents work from getting done.
It begins with one person singling out the target.
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Statistics
35% of American workers reported being bullied now or at sometime in their careers
15% reported observing bullying40% of targets never tell their employers43% of bullying from coworkers
36% Supervisors 12% Customers 5% Subordinates 4% Others
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Statistics
62% of bullies are men58% of targets are women68% of bullying cases involve the same
gender bully and victimWomen target women 80% of
the time
-2010 WBI U.S. Workplace Bullying Survey
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A Mirror Image
Bullies bully and victims succumb to bullying often for the same reasons: Lack of self esteem Power dynamics Familial patterns of behavior
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Who Is Targeted?
Competent employees because bullies see them as threatening.
Good natured employees because bullies see them as weak.
Though motivations vary, bullying often stems from narcissism, jealousy and a need for control.
Consequently, bullies tend to target non-confrontational, intelligent and popular coworkers to tear them down or even destroy their careers within the company.
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How Does it Work?
Verbal Behavior Flaunting status Shouting Swearing/foul language Spreading gossip Blaming employee Threatening job loss Excessive/unwarranted
criticism “Chilling” expression of
opinions Put down in front of others
Non Verbal Behavior Ignoring contributions Consistent failure to follow up Excluding employee from
meetings, social gatherings The silent treatment Playing mean pranks Treated rudely Consistent late arrivals to
meetings Unreasonable demands
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Confronting the Bully
Many employees fear confronting the bully
Concerns include: Retaliation Being ostracized by co-
workers Forced out of job
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Business Costs of Bullying
Medical and workers’ compensation claims
LawsuitsIndirect costs
Decreased productivity High turnover Absenteeism Poor customer relationships Low morale
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Effects of Bullying
Psychological-emotional injuries Debilitating anxiety, panic attacks (>80%) Clinical depression: new to person or
exacerbated condition (39%) PTSD (30% of targeted women; 21% of men)
Some economic harms include... Forced to transfer from a job (13%) Constructively discharged (24%) Target quits to reverse decline in health (40%)
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Bullying or Protected Status Harassment?
Bullying is “status blind”To be considered harassment, it must violate
the target’s civil rights and the target must be in a “protected status” group, e.g.:
• Race• Color• National Origin• Sex • Age• Disability
• Veteran Status• Genetic Information• Ancestry• Pregnancy• Religion
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When Bullying Turns Violent
Examples of workplace violence: Verbal threats to inflict bodily harm
Threat may be vague or perceived Attempts to cause physical harm Verbal harassment Disorderly conduct Bringing weapons to
the workplace
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Threats
Direct Threats “I’m going to beat you up”
Conditional Threats “If you tell anyone, I will
hurt you” Subjective, subtle
Veiled Threats Menacing looks Difficult to document
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Legislative Efforts
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Workplace Bullying Claims
Actionable bullying will present as: Discrimination Harassment Retaliation Infliction of emotional distress Defamation Assault/Battery Constructive discharge False imprisonment
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Success of Lawsuits
Thompson v. Tracor Flight Systems, Inc. (California 2001) Affirmed lower court decision for the plaintiff, where
a jury had found a continuous pattern of conduct that resulted in a hostile working environment.
Thompson testified that her general manager “seemed agitated with her all the time” and that he used the term “wetback” in discussion with her, knowing that she was Mexican.
Court ruled that a reasonable employee in Thompson’s position would have been compelled to resign her employment.
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Workplace Bullying – The Hostile Working Environment
EEOC v. National Educ. Ass’n Alaska (9th Cir. 2005) Male supervisor yells at female employees, invaded their
personal space, and used foul language Court of Appeals held:
Equal opportunity harasser defense questionable Harassing conduct need not be motivated by the intent to
discriminate against females. Not require facially sex-specific conduct Ultimate question is whether females are exposed to
disadvantageous terms or conditions of employment to which male employees are not exposed
Jury to decide if supervisor was more abusive and treated females worse than males
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Success of Lawsuits
Raess v. Doescher (Indiana Court of Appeals) Affirmed lower court decision in favor of the plaintiff,
who was awarded $325,000 for a claim of assault. Raess, a cardiovascular surgeon, had advanced on
Doescher, a perfusionist, with clenched fists, and popping veins, shouting “you’re finished, you’re history.”
Expert witness (Workplace Bullying Institute) categorized the event as workplace bullying.
Appeal affirmed that the phrase “workplace bully” is entirely appropriate in presenting to a jury, and bullying may be considered an intentional form of infliction of emotional distress.
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Success of Lawsuits
Noonan v. Staples (1st Cir. 2008) Manager claimed he was humiliated when his
manager sent a mass e-mail to 1,500 employees, saying that he had been fired for violating the company's travel & expense policy
Court ruled that the e-mail was meant to single out & humiliate him, & the company should not have identified him by name (even though the information was true)
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Preventive Strategies
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Is Your Workplace Full of Bullies?
Success at all costsStrong personalities and aggressiveness
are valuedPersonal friendships take precedence
over business decisionsEmployees are motivated by fear
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Signs of Workplace Bullying
Decrease in productionIncrease in resignations/transfer requestsIncrease in hotline calls and complaintsIncrease in work schedule changes
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Is Bullying Present At Your Workplace?
Survey bullying-tolerance level at the workplace Absenteeism – why? Any recurring issue in specific department or with a
specific supervisor?
Categorize employee turnover data Any trend or outlier terminations in a specific
department or supervisor
Expand issues covered in exit interviews Cover soft workplace environment issues Cover effectiveness and interpersonal relations of
supervisor
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Is She A Bully?
Challenging authorityRegularly becoming argumentativeAlienating clientsOriginating and spreading liesSwearing excessivelyMaking verbal threatsBlatantly disregarding organizational
policies and procedures
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Bully v. Tough Boss
Bully Frequent misuse of
power and authority Focus on personal self-
interest Prone to emotional
outbursts Often inconsistent and
unfair in their treatment of employees
Tough Boss Objective, fair and
professional Self-controlled and
unemotional Performance-focused Organizationally oriented
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What Do Juries Expect?
Articulated policyPrompt response, including evaluation of
facts and investigationTake reasonable action to prevent bullying
and to put a stop to it when become aware of such conduct
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Employer Involvement
Recent survey found 33% of employees believe their employer is “very engaged” in preventing bullying
Same survey revealed 43% believe their employer is “unengaged” and were unaware of any employer activity
-2010 WBI U.S. Workplace Bullying Survey
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Policies
According to the Workplace Bullying Institute, less than 20% of U.S. employers have policies prohibiting bullying conduct.
In contrast, in Australia, which has some statutory prohibitions on bullying, 79% of employers said they had policies in place.
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Establish An Appropriate Policy
Distribute widelyConduct trainingSome generalized
anti-harassment policies may already cover general abusive conduct
“Civility/Dignity at work”
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Policy Essentials
Describe appropriate business conductDefine abusive conduct Clear statement: won’t tolerate abusive conductSet forth a reasonable reporting procedurePromises
No retaliation; and Prompt investigation
Violation will lead to appropriate disciplineHow policy will be monitored and audited
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Selection And Training of Supervisors And Employees
Selection: Interview and reference check questions on
interpersonal relations
Training: The higher bar of appropriate business conduct (need
not be unlawful before unacceptable) Dignity at work Distinguish between high performance standards/ work
excellence and being abusive Underscore company’s goal of being a preferred
employer
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Expand Performance Evaluation Criteria
Elaborate people skills evaluation criteria on annual performance evaluations
Introduce 360° evaluations. Inquire about
Leadership style Effectiveness as manager Interpersonal skills
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Expand Progressive Discipline
Ensure anti-bullying policy violations treated as seriously as violation of anti-discrimination and harassment policies
Avoid trap: top results-driven employees are treated leniently
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Promptly Investigate Internal Complaints
Necessary to qualify for affirmative defenseWhen on notice, act immediately and
effectivelyMonitor corrective behavior Shows top-down commitment to maintain
harassment-free working environment Good employer practice to attract and retain
employees
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How You Handle A Bully
Violence or threats Relieve them from duty Investigate Discipline/ Terminate
Outbursts, rude, demeaning Document significant incidents Address through discipline and/or
performance management
Intimidation Diligence by management
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How You Handle A Bully
Passive/Aggressive Counsel them. Be specific going forward regarding your
expectations and address incidents where they are not met
Demanding The Company has the right to make and enforce
reasonable rules regarding its employees Let bully know that employees must follow the
rules or there will be consequences
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Test Your Knowledge
Example 1
Jim is a new janitor. He complains the existing employees are hard on “new” janitors. There are 2 ringleaders. The other 4 on the team go along. They hide the cleaning materials from him, won’t assist him when assistance is needed, tease him, and expect him to do the hardest work.
Is this bullying? What do you do?
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Example 2
Andrea says that her supervisor, Jenna, is hypercritical of her work. Jenna “micro-manages” her by checking when she comes and goes, berating her for small mistakes (and in front of other employees) and making snide remarks about what she wears. Andrea is distraught.
Is this bullying?
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Example 3
John contacts the Hotline and reports that Manager Gary “dumb” and “stupid.”
Gary also is highly critical of John for minor mistakes and never acknowledges when he performs his duties in a timely and efficient manner.
During the investigation, thecorporate HR team learns that in the past month, 4 other employees (men and women) have made similar complaints to the facility’s managers about Gary’s style.
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Example 4
Brian reports to his manager that his coworker Ben “glares at him,” “ignores him,” “tries to get other coworkers to ignore him,” and “is spreading rumors.”
Manager ignores Brian’s complaint even though Brian says the behavior has been going on for four months.
Brian reports to his managerthat when Brian was walking to his car after his shift, Ben was leaving the parking lot. Ben drove his car to almost a rolling stop and stared Brian down without saying a word.
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Question 14: $700Which of the following comments can you lawfully discipline an employee for saying to a group of employees:
A. “My supervisor is B. “Patient care at Mount
incompetent” Sinai would be much better with the NNU.”
C. “We should all sign D. None of the above
union cards.”
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Question 15: $750What percentage of first contract negotiations result in a contract between an employer and a union?
A. 98% B. 90%
C. 56% D. 13%
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BONUS QUESTION
Wisconsin
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