October 24th, 2011

In light of New York Workplace Bullying legislation: NY legal opinion


Workplace Bullying: a Global Issue

by Erika C. Collins, New York Law Journal, Oct. 24, 2011

The United States has had status-based harassment and discrimination laws in place for decades, well in advance of most other countries. Though the United States has taken several measures to protect those who are harassed in the workplace based on “protected categories,”(1) it has not introduced legislation to assist those who are “bullied” in the workplace, but do not have such a protected status on which to base a claim. Recent surveys indicate that a significant portion of U.S. workers may fall into this category; 35 percent of U.S. workers reported experiencing workplace bullying, the majority of which was same-gender harassment.(2)


Currently, there is no state or federal law to fill this gap in coverage. The first anti-bullying piece of legislation, the “Healthy Workplace Bill” (HWB), was introduced in California in 2003. Since then, 21 other states, including New York, have proposed bills based on the HWB, though none have yet been enacted. The New York State Legislature, however, is considering such a bill. A bill establishing “a civil cause of action for employees who are subjected to an abusive work environment” provides a remedy for victims of harassment that is not based on a protected category and holds employers civilly liable for maintaining abusive work environments.(3) If the bill is passed into law, New York will become the first state in the country to recognize a cause of action for workplace bullying, though several states have considered such legislation in the past.

Other countries have been more proactive in combating workplace bullying. In particular, Sweden, the United Kingdom, France and Japan have introduced new legislation or have interpreted existing legislation to address bullying in the workplace.(4) This article summarizes New York’s proposed bill. It also analyzes workplace bullying laws in place in Sweden, the UK and France as examples of treatment of workplace bullying outside the United States. Finally, this article provides recommendations to multinational employers that are faced with complying with developing bullying laws.

Healthy Workplace Bill

The New York State Legislature introduced an anti-bullying bill in 2010, which passed in the Senate,(5) but was put on hold in the Assembly. In early 2011, an identical bill was introduced in the New York State Assembly and Senate,(6) and is currently under consideration. Supporters of the proposed legislation are hopeful that New York will be the first state to pass it, prodding other states to follow its lead.(7)

The bill would amend the New York Labor Law by providing legal redress for employees who are subjected to an “abusive work environment,” which exists when an employee is “subjected to abusive conduct that is so severe that it causes physical or psychological harm.”(8) The bill defines “abusive conduct,” as “conduct, with malice, taken against an employee by an employer or another employee in the workplace, that a reasonable person would find to be hostile, offensive and unrelated to the employer’s legitimate business interests.”(9)

A single act will not constitute abusive conduct unless it is “especially severe or egregious,”(10) similar to the standard for hostile work environment claims under Title VII of the Civil Rights Act.(11) Furthermore, the bill requires employees to notify their employers of the abusive conduct.(12) After receiving such notice, employers must eliminate the abusive conduct, and may not retaliate against individuals who participated in the complaint process.(13)

The bill does provide employers with two alternative affirmative defenses. First, an employer may have an affirmative defense against a claim if it can demonstrate that it exercised reasonable care to prevent and promptly correct the abusive conduct and the employee unreasonably failed to take advantage of the appropriate preventative or corrective opportunities that it provided.(14) This defense is not available if the abusive conduct culminated in an adverse employment decision with respect to the complaining employee (e.g., termination or demotion); however, the employer can assert an alternative defense that any such decision was consistent with the employer’s legitimate business interests.(15)

The remedies available under the bill include reinstatement, removal of the offending party from the complainant’s work environment, reimbursement for lost wages and medical expenses, compensation for emotional distress, punitive damages, and attorney’s fees.(16) However, in cases where there was no adverse employment decision, emotional distress damages are capped at $25,000 and punitive damages are not available.(17) As an additional safeguard against unjust enrichment, the bill precludes employees who have collected Workers’ Compensation benefits for conditions arising out of an abusive work environment from bringing a claim pursuant to the law for the same such conditions.(18)

Sweden’s Ordinance

In 1993, Sweden became the first country in the world to enact specific anti-bullying legislation. The Ordinance on Victimization at Work,(19) enacted as part of Sweden’s occupational safety and health laws, offers protection against “victimization,” which it defines as “recurrent reprehensible or distinctly negative actions which are directed against individual employees in an offensive manner and can result in those employees being placed outside the workplace community.”(20)

Unlike New York’s proposed law, the ordinance does not provide a private cause of action for aggrieved employees; instead, it imposes administrative obligations upon employers to prevent victimization, immediately intervene when such misconduct becomes apparent, and attempt to engage in a collaborative process to resolve conflicts.(21) Employers who fail to comply with these obligations may be fined and/or imprisoned for up to one year.(22)

United Kingdom Act

Like the United States, the United Kingdom has not enacted legislation specifically to combat workplace bullying. However, British courts have interpreted an existing anti-stalking law, the Protection from Harassment Act (23) (PHA), as providing redress for victims of workplace bullying.(24) The PHA prohibits individuals from pursuing a course of conduct that either amounts to harassment, or that they should know amounts to harassment.(25)

Courts have interpreted the statute’s vague definition of “harassment” as conduct: (i) occurring on at least two occasions, (ii) targeted at the claimant, (iii) calculated in an objective sense to cause distress, and (iv) that is objectively judged to be oppressive and unreasonable.(26) However, even if the complained of conduct constitutes harassment under this objective test, vicarious liability for the conduct is not automatic; employer liability must be “just and reasonable in the circumstances.”(27) Whether or not an employer has implemented a harassment policy and procedures is one factor courts may consider in determining whether the imposition of vicarious liability is reasonable.(28) This judicial consideration is similar to the first affirmative defense under New York’s proposed law, which is available to employers that take measures to prevent and promptly correct abusive conduct.

There also is a statutory affirmative defense similar to the “legitimate business interests” defense provided in the New York bill, which is available to defendants who can show that the complained of conduct was: (i) pursued to prevent or detect a crime; (ii) legally required; or (iii) reasonable under the circumstances.(29) The PHA provides for remedies similar to those available under the New York bill, including injunctive relief and compensatory and emotional distress damages.(30) Unlike the New York bill, however, there is no cap on the damages that courts may award aggrieved employees. Significantly, a court recently awarded a victim of workplace bullying a record-setting $1.6 million in damages under the PHA.(31)

France’s Law

In 2002, France enacted the Social Modernization Law, which introduced provisions to the French Labor Code that provide civil and criminal penalties for “moral” harassment.(32) The law sets a higher standard for actionable conduct than New York’s proposed legislation does by expressly providing that a single act, regardless of its severity, is not enough to constitute moral harassment.(33) Furthermore, the conduct must have the purpose or effect of degrading the employee’s right to dignity, affecting the employee’s mental or physical health, or compromising the employee’s career.(34) The law places an affirmative obligation on employers to take all necessary actions to prevent moral harassment,(35) and prohibits them from retaliating against employees who report moral harassment or who refuse to be victims of moral harassment.(36)

Labor tribunals have construed the Social Modernization Law as holding employers strictly liable for actionable conduct, even if they implemented measures to prevent moral harassment.(37) Thus, unlike New York’s proposed legislation, there are no affirmative defenses available to employers. The law also provides for the automatic nullification of any employment contract termination resulting from moral harassment.(38) Additionally, labor tribunals have ordered employers to pay damages for breach or “disloyal non-performance” of an employment contract based upon a failure to prevent moral harassment.(39)

Steps Employers Should Take

The practical implications of the global trend aimed at combating workplace bullying are very concerning for both U.S. and multinational employers. To safeguard against litigation and liability for potentially large damage awards, employers should consider taking the following steps:

• Broaden workplace policies to prohibit abusive conduct and retaliation against any employee raising a complaint.

• Include a requirement that employees report abusive conduct, and provide a specific and clear procedure that offers employees multiple avenues to complain about abuse.

• Train all managers on how to handle reports of abusive conduct, and the consequences of retaliation.

• Take immediate and effective action to rectify all retaliation complaints.

• Continually review and, if necessary, revise employment policies to ensure compliance with applicable workplace bullying laws and regulations.

###

Erika C. Collins is a partner at Paul Hastings in New York where she chairs the international employment law practice group. Mina Maisami, an associate with the firm, and Shaira Nanwani, a summer associate with the firm, assisted in writing and editing this article.


Endnotes:

1. Under Title VII of the Civil Rights Act of 1964, race, color, religion, sex, and national origin are protected categories. The Age Discrimination in Employment Act protects workers who are 40 and older from discrimination, and the American with Disabilities Act protects disabled workers. Under the Genetic Information Predisposition Act of 2008, employers are prohibited from using information regarding someone’s genetic predisposition to disease in making employment decisions. Veteran status is also a protected category under the Vietnam Era Veterans Readjustment Assistance Act. Finally, many states also include sexual orientation as a protected category.

2. Results of the 2010 WBI U.S. Workplace Bullying Survey, WORKPLACE BULLYING INSTITUTE, http://www.workplacebullying.org/wbiresearch/2010-wbi-national-survey/ (last visited July 25, 2011).

3. S. 4258, 2011-2012 Reg. Sess. (NY); A. 4258. 2011-2012 Reg. Sess. (NY) See “History of the Healthy Workplace Campaign, HEALTHY WORKPLACE BILL, http://www.healthyworkplacebill.org/states.php (Oct. 4, 2011).

4. See Katherine Lippel, “The Law of Workplace Bullying: An International Overview,” 32 COMP. LAB. L. & POL’Y J. 1, 1 (2010); Jessica A. Clarke, “Beyond Equality? Against the Universal Turn in Workplace Protections,” 89 IND. L.J. 1219, 1259 (2011).

5. Sen. 1823 B, 2010 Sess. (N.Y. 2010).

6. Assemb. 4258, 2011 Sess. (N.Y. 2011); Sen. 4289, 2011 Sess. (N.Y. 2011).

7. See Tina Susman, “State Bills Against Workplace Bullying Gain Traction,” L.A. Times, March 18, 2011.

8. Sen. 4289 §761, 2011 Sess. (N.Y. 2011).

9. Id. (providing the following examples of abusive conduct: “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; or the gratuitous sabotage or undermining of an employee’s work performance”).

10. Id.

11. See David C. Yamada, “Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment,” 32 COMP. LAB. L. & POL’Y J. 251, 262 (2010) (describing the domestic interdisciplinary coverage of and responses to workplace bullying and discussing decision of the HWB author to base the standard on that of hostile work environment claims).

12. Sen. 4289 §761, 2011 Sess. (N.Y. 2011).

13. Id.

14. Id. §764. This affirmative defense is similar to the Title VII affirmative defense created by the Supreme Court in Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (2008) and Faragher v. Boca Raton, 524 U.S. 775 (1998).

15. Id. (providing the following examples of legitimate business interests: “termination or demotion based on the plaintiff’s poor performance,” or a “reasonable investigation of potentially dangerous, illegal or unethical activity”).

16. Id. §766.

17. Id. See also Yamada, supra note 2, at 265 (stating that this safeguard “has the effect of discouraging extensive litigation and promoting quick resolution”).

18. Sen. 4289 §769, 2011 Sess. (N.Y. 2011).

19. SWEDISH NATIONAL BOARD OF OCCUPATIONAL SAFETY AND HEALTH, VICTIMIZATION AT WORK, ORDINANCE (Arbetsmiljoverket [AFS] 1993-17) (Swed.).

20. Id. §1.

21. Id. §§4-6. The accompanying guidelines suggest that management set standards for good behavior by example and clearly communicate to employees that victimization in the workplace is unacceptable.

22. See Frank Lorho & Ulrich Hilp, Bullying at Work 15-23 (European Parliament Directorate-Gen. for Research, Working Paper SOCI 108 EN, 2001), available at http://www.europarl.europa.eu/workingpapers/soci/pdf/108 en.pdf; Helge Hoel & Stale Einarsen, “The Swedish Ordinance Against Victimization at Work: A Critical Assessment,” 32 COMP. LAB. L. & POL’Y J. 225, 240 (2011).

23. Protection from Harassment Act, 1997, c. 40, §1 (Eng.).

24. See Majrowski v. Guy’s & St. Thomas’s NHS Trust, [2005] EWCA (Civ) 251, ¶56 (Court of Appeal); Green v. DB Group Servs. (U.K.) Ltd., [2006] EWHC 1898 (Q.B.).

25. Protection from Harassment Act, 1997, c. 40, §1 (Eng.).

26. See Susan Harthill, “Bullying in the Workplace: Lessons From the United Kingdom,” 17 MINN. J. INTL L. 247, 285 (2008) (citing Green, [2006] EWHC 1898, ¶ 152).

27. Majrowski, [2005] EWCA (Civ) 251, ¶57.

28. Id. ¶59.

29. PHA §1(3).

30. Id. §3(2).

31. Green, [2006] EWHC 1898 (Q.B.).

32. C. TRAV. art. L. 122-49.

33. Id.

34. Id.

35. Id. art. L. 122-51. One measure that employers must take is preparing a written document displaying workplace rules, which includes a provision prohibiting moral harassment. Id. art. L. 122-34.

36. Id. art. L. 122-49.

37. See Loic Lerouge, “Moral Harassment in the Workplace: French Law and the European Perspectives,” 32 COMP. LAB. L. & POL’Y J. 109, 122-27 (2010) (analyzing moral harassment cases before French Labor Tribunals).

38. C. TRAV. art. L. 122-49.

39. Lerouge, supra note 31, at 123.

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This entry was posted on Monday, October 24th, 2011 at 10:13 am and is filed under Employers Gone Wild: Doing Bad Things, Healthy Workplace Bill (U.S. campaign), Tutorials About Bullying, WBI in the News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.



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