December 15th, 2014

Let’s Talk with Kalola: Target Called 911-Bully Arrested


Dear Kalola,

I was working in a trucking and logistics company, as a winery yard supervisor in California. From my first day on the job, I heard stories of our former supervisor and dispatcher who had been demoted to 'truck driver.' Word on the docks was that this guy was #1 workplace abuser who repeatedly threatened my coworkers and forced people to quit. Not on my watch.

His name was "X" and he quickly became my abuser. He was known to be very, very disgruntled for having been demoted, and everybody knew him as a ticking time bomb. But rather than submit to his abuses, I took them head-on and took an assertive and confident approach to him. All of my coworkers were afraid of him, walked on eggshells for him, and submitted to his abusive and angry whims. Not on my watch.

We began clashing from the first day on the job, when I did not listen to "his" instructions when I was the boss. He began to yell at me, point his finger in my face, and threaten my job from day 1. I filed internal complaints, and immediately experienced retaliation by his buddies in a satellite office of the company.

Over the period of three weeks, I filed internal complaints by writing and verbally, and this caused the ticking time bomb to explode. One evening, "X" was acting very paranoid, jittery, agitated. I sensed something bad was about to happen. He started to instigate our winery forklift drivers by saying that I was not "doing my job," and I confronted him by trying to "have a talk with him." He began to scream at me and use profanity, and I told him straight that he was not going to come down here and harass or bully me, or my coworkers. This set him off. The abuser quickly rushed me, got in my face, and punched me in the jaw. I called 9-1-1. He was arrested and is currently being prosecuted for workplace violence.

The fallout from this event has been particularly damaging to my career. We had heard all along that we could not tell our corporate office of this man's workplace abuses, because we would be 'forced to quit.' Yet I violated this workplace taboo and did exactly that, and took it a step further by having the criminal justice system step in and prosecute the known abuser.

Almost immediately, I have experienced workplace retaliation, demotion by our supervisors--who just happened to be his buddy--and have been told to drop the charges a number of times. I got OSHA and the US Department of Labor involved, and they have enough to charge my supervisor with a Whistleblower Retaliation charge in violation of Section 11(c) of the Federal OSH Act. The federal whistleblower protection program has been my only source of comfort in this whole mess, and I look forward to watching my abuser fry in a courtroom very soon.

California Worker


Dear California Worker,


Thank you for submitting your workplace story, and sharing how you dealing with your workplace situation.

You took a no-nonsense approach to dealing with the bully. You filed internal complaints both written and verbal concerning the worker. Under the circumstances that presented itself, you did the right thing by calling 9-1-1 when the bully punched you in the jaw. It sounds like you have been doing your own research of workplace laws that might apply to your work situation.

The bully who punched you was likely charged by arresting officers with battery, a violation of California Penal Code 242.

There is often confusion of what is an "assault" and what is "battery", the California Penal Code (CA PC) distinguishes between the two:

CA PC Section 240 states that "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." If found guilty of violating PC 240, CA PC 241 (a) provides that "An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment."

CA PC Section 242 states that "A battery is any willful and unlawful use of force or violence upon the person of another." If found guilty of violating CA PC Section 242, CA PC 243 (a) states: "A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.”

In 1994, the State of California enacted the Workplace Violence Safety Act which is codified as Code of Civil Procedure Section 527.8. Section 527.8 (a) states: "Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual that can reasonable be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer."

Did the employer seek a temporary restraining order (TRO) and a protective injunction on your behalf? Notice that the law states "may seek a temporary restraining order and an injunction."

The California Bar Association's Public Law Journal, Vol. 36, No. 2, Spring 2013 has an article written by attorney David King entitled "The Workplace Violence Safety Act: Protecting Your Agency's Most Valuable Resource" (http://www.localgovlaw.com/civica/filebank/blobdload.asp?BlobID=2229) which is worth reading. The article appears to be written for public agencies, however, the California Workplace Violence Safety Act is applicable to both public agencies and private employers. Attorney King notes that the court can order a restrained person to stay away from a worker and not contact or harass the worker at the workplace or outside of the workplace, and that "A person subject to a restraining order may not own, possess, purchase or receive a firearm or ammunition while the order is in effect, and must relinquish all firearms to law enforcement or a licensed gun dealer within 48 hours after receiving the order.”

In California, it is illegal for an employer to retaliate against a worker, i.e., to discharge, demote, suspend or discipline an employee or worker for engaging in protected activity. See California Labor Code Sections 1102.5 (a), 1102.5 (b), 1102.5 (c), 1102.5 (d), et al..

Information on how to file a retaliation/discrimination complaint with the California Labor Commissioner. Be aware that there are strict time limitations in filing a complaint.

The U.S. Department of Labor, Occupational Safety and Health Administration describes workplace violence as "any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide." The website notes that nearly 2 million American workers report having been victims of workplace violence each year.

To find information about the U.S. Department of Labor, Occupational Health and Safety Administration's (OSHA) Whisteblower Protection Program go to their website at http://www.whistleblowers.gov/. The Occupational Safety and Health (OSH) Act prohibits employers from discriminating against their employees for exercising their rights under the OSH Act, i.e., filing an OSHA complaint, participating in an inspection or talking to an OSHA inspector, seeking access to employer exposure and injury records, and raising concerns about workplace safety and health issues. Note: A worker who has been discriminated or retaliated against for exercising their rights has only 30 days of the alleged adverse action to file a complaint.

Governor Brown signed AB 2053 into law which becomes effective January 1, 2015. AB 2053 amends California Government Code Section 12950.1.

CA Govt. Code Section 12950.1 excerpts: (a) An employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position. An employer covered by this section shall provide sexual harassment training and education to each supervisory employee in California once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation. (b) An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).

Also read the San Diego Union Times article: "About California's New Law to Train Supervisors About Abusive conduct.” Note: Workplace bullying or workplace abuse is still not against the law in California.

The anti-bullying Workplace Bullying Institute (WBI) does not give legal advice. It may be in your best interests to seek the advice of a labor and employment attorney who represents workers. WBI has suggestions for finding an attorney at: https://www.workplacebullying.org/individuals/solutions/finding-a-lawyer/.

Keep documenting. Obtain a copy of the police report. Are there other workers willing to come forward and corroborate your story? If any threats are made to do you harm that are left on your home telephone or your cell phone or sent to you via e-mail or anonymous notes sent to you—do not erase/delete or destroy the evidence. Save all correspondence between you and your employer relative to this matter. Do not keep your documentation on the computer or laptop at work. Do keep your documentation in a safe place at home. Do not share what you are doing with your co-workers who might share with others.

You do not have to drop the charges made against the bully because other supervisors have told you to do so. What happened to you should not have happened and there should be a record of it. It is unconscionable that these bullies are allowed to work for the employer. No worker should have to work under the threat of duress, that is, physical force, intimidation, psychological abuse, and other threats to do harm. You are taking a stand that the aforementioned things are not going to happen on your watch. I hope that your fellow co-workers will also take a stand against workplace harassment and abuse and stand by you.

Take good care of yourself. Please update us as to your work situation and what happened to your bully.

It takes courage to tell one's story. There are many workers who will read your story who are now suffering in silence. Many are afraid to speak up about what is happening to them in the workplace. These workers live in fear that if they speak up the bullying will only get worse or they fear losing their job without realizing that their job was likely on the line the moment the bullying began. It is important for targets of bullying to get help and emotional support. WBI has a guide for selecting a therapist or licensed mental health professional at: https://www.workplacebullying.org/individuals/solutions/selecting-a-therapist/. Don't let your workplace issues fester inside you, talk to someone who can help.

Bullies may be the perpetrators of evil, but it is the passivity of all those who know what is happening and never intervene that perpetuates such abuse.” ... Philip Zimbardo, American Psychologist

Sincerely,

Kalola


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This entry was posted on Monday, December 15th, 2014 at 4:00 am and is filed under Let's Talk with Kalola. 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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