Archive for the ‘Workplace Bullying Laws’ Category
Monday, April 10th, 2017
American Federal Civil Rights Title VII law does not yet include protections (actually the right to seek legal redress in courts) for discrimination because of sexual orientation. That means sexual orientation is not one of the protected classes upon which claims of illegal discrimination by employers are based. A recent appellate court decision expands federal legal protections.
The current eight protected classes are: race, color, religion, sex, national origin, disability, genetic information and age. However, several states have added sexual orientation to their nondiscrimination statutes. Employers, of course, may voluntarily add any protections to the lean list of federal and state protections to their internal policies and procedures. But American employers have little appetite for expanding employee protections.
Congress could expand federal law if it wished. Fat chance though. The heartless authors of the The American Health Care Act and the party that installed Jeff Sessions as the U.S. Attorney General (who is “reviewing” prior Department of Justice initiatives — consent decrees and reform plans — to reduce police violence) are not likely to EXPAND the number of ways people can claim discrimination. The regulation-killers are actually against protections-for-the-people.
The U.S. Supreme Court (SCOTUS) also provided context with its 2015 decision in the Obergell case to protect the right of same-sex couples to marry. The court changed law faster than was possible by Congress, a legislative body paralyzed by homophobic ideological leaders. Society and the then-SCOTUS were more progressive than lawmakers. When courts provide legal precedent for subsequent cases, they are making case law. It is the alternative to waiting for legislatures to act. In other words, the new interpretations of existing written laws can expand or contract them.
In this context of proactive court and sluggish legislatures, the Chicago-based Seventh Circuit Court of Appeals decided the case of Kimberly Hively (No. 15-1720) on April 4. Kimberly Hively began part-time teaching at Ivy Tech Community College of Indiana in 2000. She applied for full-time teaching positions as they arose between 2009 and 2014. She never was hired. Hively is a lesbian; the college knew it. She believed the application rejections were based on her sexual orientation. She filed an EEOC complaint in 2013. The EEOC gave her permission to sue in court. Judge Rudy Lozano dismissed her case in district federal court.
The 7th Circuit majority of 11 judges, with three judges dissenting, expanded Title VII protections to include sexual orientation protection against discrimination. The majority agreed with plaintiff Hively. This is a landmark case. The defendant community college may take the case to SCOTUS. The current 11th Circuit has rejected a similar case asking for sexual orientation protection. Legal experts predict that it will be heard by SCOTUS.
Chief Judge Diane Wood, for the majority, wrote:
Ivy Tech refused to promote Professor Hively because she is homosexual. Professor Hively argues that, in doing so, the College relied on her sex, because, but for her sex, she would not have been denied a promotion (i.e., she would not have been denied a promotion if she were a man who was sexually attracted to women). She also argues that Ivy Tech’s actions constituted associational discrimination: The College took issue with Professor Hively’s intimate association with women and refused to promote her. There is no allegation, however, that the College refused to promote women; nor is there an allegation that it refused to promote those who associate with women. Rather, Ivy Tech’s alleged animus was against Professor Hively’s sexual orientation—a combination of these two factors (p. 36)
Here, the majority considers sexual orientation an extension of “sex” which is addressed by Title VII law:
One cannot consider a person’s homosexuality without also accounting for their sex: doing so would render “same” and “own” meaningless. As such, discriminating against that employee because they are homosexual constitutes discriminating against an employee because of (A) the employee’s sex, and (B) their sexual attraction to individuals of the same sex. And “sex,” under Title VII, is an enumerated trait (p.37) … Thus, the College allegedly discriminated against Professor Hively, at least in part, because of her sex (p. 40)
So, we wait to see how successfully this extension of protections holds up in future court cases. For now, there is a new law in the land!
Tags: academe, adjunct professor, civil rights, Ivy Tech Community College, Kimberly Hively, lesbian, nondiscrimination law, sexual orientation, Title VII
Posted in Commentary by G. Namie, Fairness & Social Justice Denied, Related bills/laws, Workplace Bullying Laws | No Archived Comments | Post A Comment (
Tuesday, April 4th, 2017
A report from the Economic Policy Institute sheds light on a new piece of Republican legislation sure to pass the R-dominated U.S. House of Representatives. The bill is H.R. 1180, sponsored by Rep. Martha Roby (R-AL).
It is titled the Working Families Flexibility Act of 2017.
Ross Eisenbrey and Celine McNicholas, authors of the EPI report, describe the bill as a false choice (the ostensible flexibility for workers) between getting paid overtime or working extra hours in exchange for comp time to be taken in the future. On the surface, it appears the choice belongs to the worker. Through Republican eyes, that is “freedom” for the lowly worker.
When we consider the source of the bill, and read the text, the only flexibility is given to employers. If the bill becomes law, it will work as follows. The employer wants extra hours on a given day from the worker. She or he is asked if future comp time is desired in exchange for the extra labor now. Employee wants the comp time (paid at the regular salary, not overtime rate) in a month to spend more of the kids’ school break week with family. See how nicely the title of the bill fits?
But this is not paradise, nor how it will go down. When the employee requests the earned comp time for a very important personal reason, the employer can easily deny the request. The bill’s provision allowing this is wide and ripe for exploitation by abusive or controlling bosses. All the employer’s representative need claim is that granting comp time when the employee wants it “unduly disrupts the operations of the employer.”
That will more likely be the reality.
This proposal is another stab in the back for American workers by the Republicans who shamelessly promote and pass legislation to coddle employers as if it is they who have their freedom restricted by onerous laws and regulations.
There is current federal law protecting the right to overtime pay, especially for hourly workers. However, salaried workers who earn $455 per week or more may be exempt from guaranteed overtime if their job duties fall into one of three categories: professional, administrative, or executive. That threshold is incredibly low. It was originally set in the 1970’s. The threshold was raised by the Obama Department of Labor to $913 per week, but denied implementation by the courts.
Don’t fall for the “flexibility” and “freedom” sloganeering in such bills. HR 1180 will trap workers into accepting less money for their extra time given to employers. Oppose this bill. Tell your Congressional Representative.
Tags: comp time, H.R. 1180, overtime pay, Rep. Martha Roby, salaried employee overtime, Working Families Flexibility Act
Posted in Related bills/laws, Workplace Bullying Laws | No Archived Comments | Post A Comment (
Monday, April 3rd, 2017
ALERT: The Joint Committee on Labor and Workforce Development meets Hearing Room A2 at the State Capitol on Tuesday April 4 at 1 pm. Public hearing for S 1013.
Massachusetts has been one of the more active states in recent years with the re-introduction of the anti-bullying Healthy Workplace Bill. The volunteer citizen lobbying group, Massachusetts Healthy Workplace Advocates, in concert with the public employees union, NAGE, have been the drivers of the years-long campaign.
The title of bill S 1013 is “An Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status.” It makes abusive conduct legally actionable. Employers are vicariously liable if they fail to prevent or correct it.
The immediate goal after a bill is introduced is to have the committee chairs agree to schedule a public hearing in the committee to which the bill was referred. Now, early in the legislative session, the hearing for S 1013 is set. With a positive vote from the committee, advocates can work with the bill sponsors to get the senior leaders in each chamber to call for a floor vote for the bill. This has been the snag in years past.
WBI will call on its supporters to help compel key Mass politicians to agree to that floor vote.
For now, we want everyone to thank the prime sponsor, Sen. Jennifer L. Flanagan
Her email: Jennifer.Flanagan@masenate.gov
Her office phone: 617-722-1230
Here is the list of all sponsors:
Diana DiZoglio, Frank I. Smizik, John W. Scibak, Angelo J. Puppolo, Jr., RoseLee Vincent, Thomas M. McGee, Louis L. Kafka, Barbara A. L’Italien, Lori A. Ehrlich, Daniel M. Donahue, Michael D. Brady, James J. O’Day, Aaron Vega, Kenneth J. Donnelly, Denise Provost, Jonathan Hecht, Bruce J. Ayers, Ann-Margaret Ferrante, Brian M. Ashe, Chris Walsh, Ruth B. Balser, Danielle W. Gregoire, Steven Ultrino, Tackey Chan, Donald F. Humason, Jr., Brendan P. Crighton, John J. Mahoney, Dylan Fernandes, Solomon Goldstein-Rose, William N. Brownsberger, Russell E. Holmes, Jonathan D. Zlotnik, Kevin G. Honan, Joan B. Lovely, James B. Eldridge, Claire D. Cronin, David T. Vieira, Michael O. Moore, John C. Velis, Kevin J. Kuros, Alice Hanlon Peisch, James Arciero, Byron Rushing, Paul McMurtry, Paul Brodeur, Sal N. DiDomenico, Christine P. Barber
Tags: Healthy Workplace Bill, Joint Committee on Labor and Workforce Development, Massachusetts legislation, S 1013, Sen. Jennifer Flanagan, workplace bullying
Posted in Healthy Workplace Bill (U.S. campaign), Workplace Bullying Laws | No Archived Comments | Post A Comment (
Friday, July 29th, 2016
By Darrell Smith, Sacramento Bee, July 28, 2016
with WBI commentary inserted
Sacramento jurors, in a $1.1 million verdict Wednesday, sided with a state corrections employee who claimed her higher-ups did little or nothing to protect her from threats made by one of her subordinates, then retaliated against her when she complained of the threatening treatment.
The threat was a death threat, of bringing a gun to work, not a minor act.
Jurors awarded Onalis Giunta, a supervising dental assistant at Folsom State Prison when she filed the 2012 lawsuit against California Department of Corrections and Rehabilitation, $990,000 for noneconomic losses and mental suffering along with another $107,000 in past and future earnings, in their verdict, court documents showed.
It was not known Thursday whether there were plans to appeal the verdict.
Giunta in the lawsuit characterized the man identified in court documents as Serge Protsyuk, as a problem employee who often ran afoul of California Department of Corrections and Rehabilitation rules and regulations.
Protsyuk was a former coworker of the newly promoted supervisor, Giunta. He never respected her authority and was coddled by two male supervisors of hers who undermined her role. He aggressively disobeyed rules that he felt did not apply to him, daring her to discipline him.
Giunta alleged that the employee threatened to bring a gun to work after disciplinary action in November 2010. Protsyuk followed the alleged gun threat with months of more intimidation, the lawsuit alleged, forcing Giunta to take a yearlong, doctor-ordered stress leave.
Yes, you read that correctly. After he threatened revenge on her for an unfavorable evaluation by bringing a gun to work, the warden and security staff who had been told of the threat that night planned to search him the next morning when Protsyuk arrived for work. NO ONE ever called Giunta that night to warn her of the threat made against her. Protsyuk was frisked the next morning and allowed to go work as usual. Giunta was told about the threat AFTER she saw Protsyuk walk past her office window! No suspension. No punishment. And Giunta had to work with him for another six months without his removal.
Giunta was traumatized. All the while, the warden had decided that no violation of the strict zero-tolerance Violence Prevention Policy had occurred. No investigation of Giunta’s complaint about the violation was undertaken.
Tags: bullying, California Department of Corrections & Rehabilitation, Folsom State Prison, Gary Namie, Lawrance Bohm, Onalis Giunta, Protsyuk, Robert Boucher, trial, violence policy
Posted in Expert Witness, Fairness & Social Justice Denied, Rulings by Courts, WBI in the News | No Archived Comments | Post A Comment (
Wednesday, March 30th, 2016
On Jan. 1, 2015 California started mandating training in Abusive Conduct for supervisors (in employers with 50 or more workers). The definition was lifted verbatim from the WBI Healthy Workplace Bill (HWB) authored by Suffolk University Law Professor David Yamada.
WBI and its national network of volunteer State Coordinators has been lobbying for the complete HWB since 2001. Timid, business lobby-yoked state lawmakers are afraid to take a stand for workers who suffer health harm as the result of workplace bullying. Of course, the HWB does not include the phrase “workplace bullying.” The term used is “abusive conduct.”
California and Utah have mandated training. Utah’s 2015 legislation is superior to California’s, though it applies only to state agency employers. Utah requires that employers describe how they will provide protections to employees. California, at first, simply mandated the training. And the topic of abusive conduct, which is still legal until the full HWB is enacted into law in California, is to be added to mandated training on the employer’s commitment to the prevention and resolution of illegal sexual harassment. Oops. This is confusing to nearly everyone. Many HR types hardly understand the power of having protected group status membership or not.
We worry that employees will conflate bullying (abusive conduct) with illegal forms of harassment, including exposure to a hostile work environment. They will falsely believe that abusive conduct is currently illegal because of the pairing with illegal forms of discrimination that violate state and federal laws.
Now comes an April 1 amendment to California Fair Employment and Housing Act Regulations. The section below shows the intended clarification regarding the content of the Abusive Conduct related to Government Code section 12950.1(g)(2).
The good news: the deleterious impact on the targets of abusive conduct must be discussed. Naturally, the negatives for the employer are to be included.
The bad news: the regulation lifts most of our HWB definition of abusive conduct but omits the critical element describing that personal health harm can be manifested. And time devoted to abusive conduct training should be “meaningful.” Still vague.
Read the amended, clarifying regulation for yourself.
Tuesday, March 29th, 2016
Today, well ahead of the expected June decision, the U.S. Supreme Court split 4-4 in the decision regarding Friedrichs v. California Teachers Association.
The SCOTUS is short one member since the passing of Antonin Scalia. The tie vote allows previous appellate court verdicts to stand. As described in earlier posts — here and here, the cocky anti-union plaintiffs were so confident of using SCOTUS to bankrupt public sector unions that they asked both trial and appellate courts to rule against them so they could expedite the process to get to the Supreme Court.
Justice Scalia’s death was unexpected. His vote would have delivered an anti-union majority vote. The tie, however, allows the lower court decision (made at plaintiffs’ request with no evidence ever presented as in a real trial) to stand. The anti-union plaintiffs lose. Unions win (for now). Here is the entire SCOTUS decision.
Wednesday, February 24th, 2016
By Pam Raphael
Bullying has gotten a lot of attention . Most of the focus has been on children but we know that children learn from us, how we treat each other and how we use power in relationship.
It is urgent that we are taking bullying in school seriously. It is not a developmental stage or a phase of childhood it is a lack of better tools, understanding, accountability and developmental capability. It is not something to be ignored until they grow out of it.
Children who are targeted suffer terribly and the trauma can follow them for decades. Some turn their trauma inward leading to low self esteem, under-performance and depression. While others channel it outwardly and become bullies themselves.
When childhood bullies grow up without accountability meted by their peer groups, families or the criminal justice system they go to work and continue their pattern of abuse.
That is why American workplaces have a bullying problem.
According to a recent national survey conducted by the Workplace Bullying Institute, 72% of people polled reported knowledge that workplace bullying exists and 27% have current or past experience with it. That means one in four people have experienced it and three out of four of us have witnessed it.
It is not a surprise, then, that 93% of those same people polled would also support legislation that makes it unlawful.
When an adult has been abused so relentlessly that they have severe anxiety and can no longer work we assume they must have been weak willed, mentally ill or have a “victim mentality.”
But that is looking in the wrong direction. The distorted thinking and mental illness of people who are emotionally undeveloped, unstable or disordered and who are inflicting abuse on others is the problem. People who lack the self awareness, emotional capability and communication skills resort to blame and scapegoating.
Because there is no law defining it or how to respond, most employers ignore the perpetrator to protect liability allowing workplace bullying to continue. It is a failure of will that we can and must demand be changed. Bullying is abuse.
Here is something you can do today to start change happening here in WA state:
There are two companion bills that were introduced this legislative session in Washington State that need your support:
Senate Bill 6532 and House Bill 2894 would “provide legal recourse for employees who have been harmed, psychologically, physically, or economically, by being deliberately subjected to abusive work environments; and provide legal incentives for employers to prevent and
respond to mistreatment of employees at work.”
Please contact your legislators as well as the sponsors of the bills and let them know you appreciate their consideration of these bills because you see the urgency to do something to help employees and employers in WA State. Find a comprehensive list of legislators here – http://healthyworkplacebill.org/states/wa/
Let them know you believe this demands our attention now.
We need legislation to protect employees from the worst kinds of bullying and abuse the kind that ruins lives and protect the bottom line and liability of employers who do the right thing.
We have to change our belief that abuse is normal and inevitable. When someone is bullied on the job that is not correcting a problem it is the problem.
Washington is leading the nation in so many ways. Let’s lead the nation in modeling healthy workplaces. The costs to everyone are too high to ignore it any longer.
Pamela Raphael is a Mental Health Counselor in Seattle specializing in the effects of traumatic workplace and relationship abuse. She is a former board president of Real Change and is currently serving as the WA State Coordinator for the Healthy Workplace Bill, a national initiative of the Workplace Bullying Institute.
Tags: Healthy Workplace Bill, Pam Raphael, Washington State, workplace bullying, Workplace Bullying Institute
Posted in Healthy Workplace Bill (U.S. campaign), Workplace Bullying Laws | No Archived Comments | Post A Comment (
Sunday, February 14th, 2016
Everyone bullied knows how the absence of any state laws to expressly prohibit bullying and abusive conduct has made it difficult to get justice from their employers. Without a law such as state and federal statutes that make discriminatory misconduct illegal, employers can and do nothing.
Does anyone believe American employers, government or private sector, would voluntarily stumble upon the mistreatment women routinely face in the contemporary workplace and create protections for those employees? Not likely. Only laws get employer attention and compel compliance. That’s why employer policies are in place. In fact, most employers overreact to even a hint of harassment.
Try going to HR to simply clarify your experiences that may or may not be harassment. That’s why you went down to HR to explore what happened to you and what can be done informally. Bam! HR opens a complaint on your behalf, though you greatly fear reprisals. HR is minimizing exposure to legal risks for them without regard to your safety.
Yet, when you claim to be “bullied,” you are not believed or discounted or ignored or made to believe you caused your fate. Why? Bullying is still legal. Bullies can, and do, bully with impunity. And once you make the employer aware, the retaliation, often worse than the original sins, worsens your situation. Your health declines from a host of stress-related complications — cardiovascular, gastrointestinal, neurological changes that affect emotional regulation and memory, and mental health, often ending in trauma.
This is why having a law passed soon is essential for worker safety.
WBI thanks Rhode Island State Senator Frank Ciccone, a lifelong friend of labor, for sponsoring SB 2377 on Feb. 10, 2016. He and the other four co-sponsors deserve our thanks and praise.
SB 2377 also put Rhode Island on the map. It became the 30th state to ever introduce our anti-bullying Healthy Workplace Bill.
Now we pray for a public hearing in the Senate Labor Committee. May the Ocean State be the first to make the bill state law.
Thursday, January 28th, 2016
Eleven Washington State House Representatives have sponsored the anti-bullying Healthy Workplace Bill (HB 2894). Another 11 state Senators of both parties are sponsoring the Senate companion bill (SB 6532). The HWB defines health-harming abusive conduct and makes it unlawful for employers to allow it to happen.
This marks the return of the legislation to Washington, absent since 2012. Washington was the 4th state to ever introduce the legislation.
If you live in the state, please visit the WA State Page at the Healthy Workplace Bill website. Contact information for all bill sponsors and committee members can be found there. You can also volunteer to testify or help the State Coordinator get the bill through committees and floor votes in a very short legislative session.
Tags: abusive conduct, Healthy Workplace Bill, workplace bullying, workplace bullying insitute
Posted in Healthy Workplace Bill (U.S. campaign), Workplace Bullying Laws | No Archived Comments | Post A Comment (
Thursday, January 21st, 2016
On January 11, SCOTUS heard oral arguments in a case designed to overturn a 39-yr. precedent involving public sector unions. Since the 1977 Abood decision, government workers had the right to enjoy all the benefits of union membership without paying all of the dues owed to unions. That is, Abood split dues into “fair share” fees and expenses ostensibly not related to collective bargaining and the mere protection of workers’ rights. Non-members were to pay only the bargaining-related fees.
The Friedrichs case found 10 California teachers who wanted to claim the right to refuse to pay any dues, even costs associated with protecting their workplace rights. Right-wing, anti-union groups used the case to bring to the pro-corporate/pro-employer Roberts SCOTUS to put what might be the final nail in the coffin of the strongest unions left in the country, public-sector unions.
You can read the NY Times SCOTUS watcher, Linda Greenhouse, as she interprets the oral testimony.
Details of the case can be read here.
You can read the entire transcript here.
Or listen to the audio of the oral arguments.
Decision is expected in June.
Tags: agency fees, collective bargaining, fair share fees, freeriding, Friedrichs v. California Teachers Association, government workers, public sector, public sector unions, teachers, U.S. Supreme Court, Unions
Posted in Rulings by Courts | No Archived Comments | Post A Comment (