February 18th, 2013
Anticipating opposition to New Hampshire HB 591
If the bill passes, protections against an abusive work environment (its definition in the bill follows the WBI definition of workplace bullying) would be granted to State workers. That means the opposition to the bill will not likly be led by the state chamber of commerce (the NH Business & Industry Association), though the bill is on their radar.
Principal opposition will be state agencies. The State is the employer who can be named liable for abusive practices that happen at their worksites. This alternate version of the bill has appeared in other states in past years. In each instance, State agencies make spurious claims that a new law is not needed. We contend that the HWB is necessary, given that bullying is so prevalent (35% of adult Americans experience it) when employers are free to exercise voluntary restraint.
Here is a six-pack of predictable objections and how to counter each.
Objection 1. State says: Existing employment laws are adequate. A hostile work environment is already illegal.
The countering truths: There are two relevant laws and both are inadequate. First, there are the civil rights and disability and age discrimination statutes, both federal and state. They require that the recipient of mistreatment be a member of a protected status group. When the harasser is also “protected,” discrimination law coverage gets thin. Same-gender discrimination is a non-starter for most attorneys. Most bullying is same-race, same-gender. A hostile work environment prohibition is the product of case law in discrimination cases. Therefore, it is not true that a hostile work environment is illegal for everyone.
The second law applicable in many bullying situations is the tort of outrage, wherein a target files a claim for intentional infliction of emotional distress. As I said in WBI Podcast 32-C,
There are four conditions to satisfy in a successful emotional distress lawsuit. The first is to prove that the conduct suffered by the target was outrageous. To you and me, in mild to severe cases of bullying, the misconduct is easily considered outrageous. Shockingly bad or excessive is the dictionary definition. We all would add undeserved, uninvited and unconscionable. If you are Canadian, your courts use the reasonable person standard — would a reasonable person consider the bullying outrageous? In America, the legal standard is unattainably high. To be outrageous, the behavior must have been beyond the bounds of civilized society …
Courts throw out most cases called IIED when the employer files a motion for dismissal or summary judgement. That means the cases stop before they begin. Before depositions and discovery. Courts tend to consider whatever managers do to be acceptable, cruel at times, but not sufficiently outrageous. Employers, using the courts for support, are allowed to call targets liars, telling incredible and improbable tales that never happened.
Suffolk University Law Professor David Yamada wrote the legal treatise on the shortcomings of IIED to deal with workplace bullying. Read his extensive legal argument.
Objection 2. State says: Passing the bill into law will cost the state money when jury verdicts find the State guilty of fostering an abusive work environment.
The countering truths: The employer (State agencies) can escape liability using affirmative defenses contained in the bill. In other words, if each agency were to create an anti-bullying policy and faithfully enforce it when complaints are filed, the agencies would be exempt from liability. It is their “get out of a lawsuit” card. They can avoid litigation if they voluntarily did what fiscal responsibility tells them to do. Prevent and correct bullying — no problems result. No fines, no verdicts, no penalties.
Again, opponents selectively omit this gift to employers. The reason it is there in the first place is that one of the two goals of the HWB is to convince employers to treat bullying as seriously as they now do sexual harassment. Millions of workers will be relieved when employers solve the problem themselves rather than ignore it. The liability exemption is the reward for good employers.
Objection 3. State says: Adding abusive conduct to the training agenda is too costly.
The countering truths: This objection sounds whiny. But let’s address it as if it is credible. Federal and state laws compel education for employees on the topics of sexual harassment and racial discrimination. It is simple and cost-neutral to expand that training to include this new topic.
Further, the money saved from defending accused abusers and paying subsequent settlements or court-mandated damages, could be applied to the training budget. Save on litigation to prevent even more litigation.
Objection 4. State says: State managers will be handcuffed and prevented from managing staff.
The countering truths: Additional affirmative defenses in the bill allow managers to manage (assign work, criticize poor performance, terminate) as long as the actions are not done abusively. The bill preserves managerial rights. A common trick used by opponents is to act like they have never read the bill and don’t know its contents.
However, this objection raises the question that if a state agency manager must abuse subordinates, why is she or he being paid by taxpayers?
Objection 5. State says: Workplace abuse or bullying is too subjective. It cannot be defined.
The countering truths: Actually, there is a great deal of consensus by researchers worldwide about the phenomenon. The bill requires objective health damage that results from the prohibited abuse. Subjectivity is replaced by medical measures and diagnoses. The only ones who say that it can’t be defined have (a) not researched the topic, or (b) stand to gain by denying that abuse occurred in the first place.
Objection 6. Employees are “sue crazy.” There will be a flood of lawsuits because workers don’t like the way someone sighs or raises her eyebrows.
The countering truths: Most bullied targets are broke. 77% of them lose their jobs. Hiring a private attorney (as the bill states) is expensive.
Most important, the bill specifically reserves legal action for serious cases in which health harm — physical or psychological — is demonstrated. Simple nonverbal cues alone are not sufficient to generate debilitating anxiety, depression, posttraumatic stress, cardiovascular diseases or a host of other stress-related diseases. This bill is about abuse and the serious harm it inflicts.
This entry was posted on Monday, February 18th, 2013 at 2:40 pm and is filed under Healthy Workplace Bill (U.S. campaign), Unions, Workplace Bullying Laws. 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.