Everyone remembers a bully in junior high school. She might have been the mean girl who told others not to be your friend, or the brute who inflicted his cruelty with wedgies and half nelsons. Sadly, some people never graduate from junior high—mentally, at least—and some of those miscreants are now employed in your workplace. What is an employer to do? California has an answer.
The issue of bullying has captured the nation’s attention. October is “National Bullying Prevention Awareness Month,” according to StopBullying.gov, a federal government website managed by the U.S. Department of Health & Human Services, which provides information on bullying, cyberbullying, and tips on recognizing and preventing bullying from various federal agencies.
While the focus of National Bullying Prevention Awareness Month is mostly on schools and students, it is not exclusively so. A recent survey conducted by an advocacy group suggests that abusive conduct does occur in the workplace. A Zogby Analytics survey commissioned by the Workplace Bullying Institute (WBI) in 2014 found that 27 percent of the 1,000 people surveyed had suffered abusive conduct at work, another 21 percent had witnessed abusive conduct at work, and 72 percent were aware that workplace bullying happens.
In recent years, a number of advocacy groups and state legislators have endeavored to ban abusive conduct in the workplace. Since 2001, advocates all over the country have pushed for anti-bullying laws via the Healthy Workplace Bill (HWB). First introduced in California, the HWB proposes to give employees the right to sue a company for psychological harm caused by coworkers’ abusive conduct. The initiative has steadily gained momentum throughout the United States, and the HWB has been introduced by legislatures in 23 other states.
So far, these legislative efforts have, by and large, failed—and sensibly so. The majority of employers already prohibit unprofessional and discourteous conduct for obvious reasons. Certainly no employer would want to condone abusive behavior. Yet legislating a solution to the problem begets larger problems. “Abusive conduct” is difficult to define, and the harm caused by it is subjective. Granting every disgruntled employee the right to sue when he or she thinks a supervisor or coworker has been unkind would surely paralyze most employers.
Against this backdrop, last month, California Governor Jerry Brown signed AB 2053, the first workplace anti-bullying law in the state. The law requires employers with 50 or more employees to train supervisors on the prevention of “abusive conduct” in the workplace. The training must be incorporated into the employer’s requirement to provide two hours of sexual harassment training for supervisory employees at least once every two years, as mandated by AB 1825 (Gov. Code § 12950.1).
The California training law defines “abusive conduct” as the “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include 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 a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.” Notably, this training law does not prohibit abusive conduct. It only requires that supervisors receive training on its prevention.
The new law specifies that the topic of abusive conduct be covered, but nothing more. Presumably, issues such as how much of the two hours should be devoted to the topic, and what supervisors should be told about preventing abuse, are left to the discretion of the trainer.
Regulated or not, employers should consider taking steps to minimize abusive conduct in the workplace. In particular, employers may want to consider tailoring their training programs and policies as follows:
- During training sessions, focus on common scenarios that fall outside the definition of illegal misconduct, identify inappropriate conduct, and offer guidance on how to intervene and respond to complaints. For example, while sexual harassment complaints often involve members of the opposite sex, bullying may involve a different dynamic. The WBI survey indicated that 77 percent of victims are bullied by perpetrators of the same gender.
- Although psychological bullying is not illegal unless directly connected to a protected class, consider supplementing general codes of conduct with specific anti-bullying policies and perhaps a formal complaint system. According to the WBI survey, targets of bullying quit or lose their jobs 89 percent of the time. A broader code of conduct could help improve morale, increase productivity, and reduce turnover.
- Take any complaints of bullying seriously and consider implementing disciplinary procedures targeting bullies. Surveys indicate that most targets and witnesses are reluctant to report the bullying they experience—perhaps due to the fact that the consequences for misconduct are amorphous. By expressing a commitment to take complaints seriously and to follow up with corrective action, employers will reassure the targets of bullying and deter would-be perpetrators. This will help foster a healthy environment for employees.
For more information on how to train your supervisory employees on preventing abusive conduct in the workplace, please contact the Ogletree Deakins attorneys with whom you normally work or the authors of this post.