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Sep 29, 2011

By Susan R. Hartung

Imagine this: You are the company human resources manager and Sam, a salesman employed by the company, has just come to you in confidence to report problems he is having with a co-worker, another salesman named Jim.

Sam tells you that Jim constantly interrupts him in sales team meetings, regularly disagreeing with most of the ideas Sam shares during these sessions. He has even seen Jim roll his eyes a few times when he speaks.

When they are forced to go together on team sales calls outside the office, Jim dominates the conversations with potential customers and does not allow Sam the opportunity for input. Jim often addresses Sam as “Little Sammy,” and other members of the sales team have followed his lead.

Sam tells you he has been having a hard time sleeping at night because he is replaying in his mind all of the day’s events and what he should have said to Jim in response to his behavior towards him. Sam explains how he recently tried to address these issues with Jim, noting that Jim responded by yelling at him and telling him to stop being so sensitive. Sam tells you that he is sick and tired of being picked on by Jim.

Is Sam being bullied by Jim?

What is workplace bullying?

It can, at times, be hard to differentiate between an isolated incident that might otherwise be categorized as an office disagreement and actual workplace bullying. According to the Workplace Bullying Institute (WBI), workplace bullying is “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: verbal abuse; offensive conduct/behaviors (including nonverbal), which are threatening, humiliating, or intimidating; or work interference – sabotage – which prevents work from getting done.”

This definition could include, among other things, having work product constantly criticized, yelling, being constantly reminded of past mistakes, spreading rumors or lies and being intentionally avoided or excluded.

In evaluating complaints like those made by Sam, you need to look at the whole picture (in legal terms, the totality of the circumstances). A key element of the WBI definition of workplace bullying is that the mistreatment is repeated. It isn’t a one-time altercation; rather, it is persistent harassment or abuse.

Another key element of the definition is that the mistreatment must cause harm to the target’s health. Based on the scenario above, you may have an office bully on your hands.

Is workplace bullying against the law?

In short, no. While workplace bullying may implicate anti-discrimination or other employment laws, in many cases, it does not. Since 2003, 21 states have introduced legislation addressing workplace bullying, but no state has yet to pass a law regarding it.

The Healthy Workplace Bill, authored by Suffolk University Law School Professor David C. Yamada, serves as a model bill for individual state legislation.

The bill forbids an abusive work environment that harms a person’s physical or emotional health and aims to impose individual liability for such behavior. The bill also exposes a company to potential liability for the actions of its employees if it fails to exercise reasonable care to prevent and promptly correct bullying behavior. For an employee to prevail under the bill, he or she would need to provide medical documentation of the harm to his or her health.

The bill gives a court the authority to award a target of workplace bullying monetary compensation, as well as the authority to grant injunctive relief, requiring the company and/or the bully to do something or refrain from doing something (e.g., the court could require the bully to complete a course on the harmful effects of bullying). The court also could order removal of the bully from the workplace under the bill. To ensure protection of potential targets and witnesses, the bill also has an anti-retaliation component.

What can employers do about workplace bullying?

Defending an allegation of workplace bullying is costly, regardless of merit. In order to help insulate a company from potential claims lodged against it by the alleged target and/or the alleged perpetrator regarding workplace bullying and/or a company’s response to it or lack thereof, companies should take the following steps:

  • Develop a policy against workplace bullying. If you don’t already have one in place, you should develop a policy that forbids bullying behavior in the workplace. The policy should include a definition of workplace bullying, a complaint investigation procedure that must be followed once an allegation of workplace bullying has been made and consequences for violations of the policy. It could also provide a non-exhaustive list of bullying behaviors.
  • Educate your employees. Distribute the policy to all employees. Consider posting it in conspicuous places throughout the workplace and on your company website. Conduct workplace training on the policy to ensure employees understand it.
  • Enforce the policy. Treat all employees equally under the policy. Take each complaint seriously. Investigate all complaints thoroughly using the procedure outlined in the policy. Don’t ignore bullying behavior just because the target does not come to you and complain.

Employing these actions should help you address the issues that arise with the “Sams” and the “Jims” in your workplace, including a volatile relationship between employees and the threat of potential litigation. Being aware of the implications of workplace bullying and having a clear-cut policy, of which your employees are aware and that is consistently enforced, is a company’s first line of defense.

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