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TRI-COUNTY SHRM CONFERENCE. Bullying In The Workplace – A New Frontier of Liability ************** 2011 UPDATE Recent Legal, Legislative, and Newsworthy Developments Since 2010 David E. Block, Esq. Jackson Lewis LLP 2 S. Biscayne Boulevard, Suite 3500 Miami, FL 33131

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tri county shrm conference

Bullying In The Workplace – A New Frontier of Liability



Recent Legal, Legislative, and Newsworthy Developments Since 2010

David E. Block, Esq.

Jackson Lewis LLP

2 S. Biscayne Boulevard, Suite 3500

Miami, FL 33131



Recent Legal, Legislative, and Newsworthy Developments Since 2010

tri county shrm conference1


nlrb activism
NLRB Activism
  • NLRB reconsidering standard for allowing employers to deny access to union organizers.
  • Greater focus on “protected, concerted” activity, especially with social media, e.g. FaceBook
tri county shrm conference3



tri county shrm conference4


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  • You will receive an hourly wage of $__________ from [the company].
  • [The company] will credit $__________ per hour toward your wages based on the tips you receive. This credit cannot exceed the tips you actually receive. Your hourly wage plus this credit must be at least equal to the minimum wage.
  • All tips you receive must be retained by you, except for tips contributed to a valid tip pooling or tip sharing arrangement limited to employees who customarily and regularly receive tips.

The tip credit will not apply to any employee who has not been informed of these requirements.

  • By signing this form, I hereby acknowledge that I have read this Notice to Tipped Employees and that I have received a copy of this document for my reference.

Employee’s Name (Printed) Date

Employee’s Name (Signed)

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  • Beginning on [date], you will receive an hourly wage of $__________ from [the company].
  • Beginning on [date], [the company] will credit $__________ per hour toward your wages based on the tips you receive. This credit cannot exceed the tips you actually receive. Your hourly wage plus this credit must be at least equal to the minimum wage.
  • By signing this form, I hereby acknowledge that I have read this Supplemental Notice to Tipped Employees and that I have received a copy of this document for my reference.

Employee’s Name (Printed) Date

Employee’s Name (Signed) Date

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AT&T Mobility LLC v. Concepcion, ____ U.S. ____ (04.27.11) (Supreme Court holds California rule prohibiting class action waivers in arbitration agreements is pre-empted and invalidated by FAA).

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Associated Retaliation Claims

Employee fired because his fiancé stated a claim for unlawful retaliation.

Thompson v. North American Stainless, ___ U.S. ___ (01/24/11).

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Holding that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

Staub v. Proctor Hospital, ___ U.S. ___ (03.01.11)

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Unanimously ruling that NASA's standard background check, as applied to contract employees, does not violate a constitutional right to informational privacy.

NASA v. Nelson, ___ U.S. ___ (01.19.11).

meeting mr ms right

Could be Coming to Your Company

match com
  • The company is in the business of introducing individuals for the purpose of dating.
match com1
  • Is all that different than looking for an employment relationship?
match com2


  • Jane Doe has used for 5 years.
  • She is introduced to “X” via
  • Date #1 goes fine.
  • Date #2 turned violent.
  • “X” had a history of sexual battery convictions.
match com3
  • Is responsible?
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Bullying In The Workplace – A New Frontier of Liability

what we will discuss
What We Will Discuss
  • What is bullying
  • Impact of bullying on the workplace
  • Recent legislative and court updates
  • Strategies to address bullying in the workplace
  • Examples and scenarios
what is bullying
What is Bullying?
  • Mistreatment severe enough to compromise a targeted worker's health, jeopardize her job and career, and strain relationships with friends and family.
  • It is a laser-focused, systematic campaign of interpersonal destruction.
  • It has nothing to do with work itself. It is driven by the bully's personal agenda and actually prevents work from getting done.
  • It begins with one person singling out the target.
  • 35% of American workers reported being bullied now or at sometime in their careers
  • 15% reported observing bullying
  • 40% of targets never tell their employers
  • 43% of bullying from coworkers
    • 36% Supervisors
    • 12% Customers
    • 5% Subordinates
    • 4% Others
  • 62% of bullies are men
  • 58% of targets are women
  • 68% of bullying cases involve the same gender bully and victim
  • Women target women 80% of the time

-2010 WBI U.S. Workplace Bullying Survey

a mirror image
A Mirror Image
  • Bullies bully and victims succumb to bullying often for the same reasons:
    • Lack of self esteem
    • Power dynamics
    • Familial patterns of behavior
who is targeted
Who Is Targeted?
  • Competent employees because bullies see them as threatening.
  • Good natured employees because bullies see them as weak.
  • Though motivations vary, bullying often stems from narcissism, jealousy and a need for control.
  • Consequently, bullies tend to target non-confrontational, intelligent and popular coworkers to tear them down or even destroy their careers within the company.
how does it work
How Does it Work?

Verbal Behavior

Non Verbal Behavior

Ignoring contributions

Consistent failure to follow up

Excluding employee from meetings, social gatherings

The silent treatment

Playing mean pranks

Treated rudely

Consistent late arrivals to meetings

Unreasonable demands

  • Flaunting status
  • Shouting
  • Swearing/foul language
  • Spreading gossip
  • Blaming employee
  • Threatening job loss
  • Excessive/unwarranted criticism
  • “Chilling” expression of opinions
  • Put down in front of others
confronting the bully
Confronting the Bully
  • Many employees fear confronting the bully
  • Concerns include:
    • Retaliation
    • Being ostracized by co-workers
    • Forced out of job
business costs of bullying
Business Costs of Bullying
  • Medical and workers’ compensation claims
  • Lawsuits
  • Indirect costs
    • Decreased productivity
    • High turnover
    • Absenteeism
    • Poor customer relationships
    • Low morale
effects of bullying
Effects of Bullying
  • Psychological-emotional injuries
    • Debilitating anxiety, panic attacks (>80%)
    • Clinical depression: new to person or exacerbated condition (39%)
    • PTSD (30% of targeted women; 21% of men)
  • Some economic harms include...
    • Forced to transfer from a job (13%)
    • Constructively discharged (24%)
    • Target quits to reverse decline in health (40%)
bullying or protected status harassment
Bullying or Protected Status Harassment?
  • Bullying is “status blind”
  • To be considered harassment, it must violate the target’s civil rights and the target must be in a “protected status” group, e.g.:
  • Race
  • Color
  • National Origin
  • Sex
  • Age
  • Disability
  • Veteran Status
  • Genetic Information
  • Ancestry
  • Pregnancy
  • Religion
when bullying turns violent
When Bullying Turns Violent
  • Examples of workplace violence:
    • Verbal threats to inflict bodily harm
      • Threat may be vague or perceived
    • Attempts to cause physical harm
    • Verbal harassment
    • Disorderly conduct
    • Bringing weapons to the workplace
  • Direct Threats
    • “I’m going to beat you up”
  • Conditional Threats
    • “If you tell anyone, I will hurt you”
    • Subjective, subtle
  • Veiled Threats
    • Menacing looks
    • Difficult to document
workplace bullying claims
Workplace Bullying Claims
  • Actionable bullying will present as:
    • Discrimination
    • Harassment
    • Retaliation
    • Infliction of emotional distress
    • Defamation
    • Assault/Battery
    • Constructive discharge
    • False imprisonment
success of lawsuits
Success of Lawsuits
  • Thompson v. Tracor Flight Systems, Inc. (California 2001)
    • Affirmed lower court decision for the plaintiff, where a jury had found a continuous pattern of conduct that resulted in a hostile working environment.
    • Thompson testified that her general manager “seemed agitated with her all the time” and that he used the term “wetback” in discussion with her, knowing that she was Mexican.
    • Court ruled that a reasonable employee in Thompson’s position would have been compelled to resign her employment.
workplace bullying the hostile working environment
Workplace Bullying – The Hostile Working Environment
  • EEOC v. National Educ. Ass’n Alaska (9th Cir. 2005)
    • Male supervisor yells at female employees, invaded their personal space, and used foul language
    • Court of Appeals held:
      • Equal opportunity harasser defense questionable
      • Harassing conduct need not be motivated by the intent to discriminate against females.
      • Not require facially sex-specific conduct
      • Ultimate question is whether females are exposed to disadvantageous terms or conditions of employment to which male employees are not exposed
      • Jury to decide if supervisor was more abusive and treated females worse than males
success of lawsuits1
Success of Lawsuits
  • Raess v. Doescher(Indiana Court of Appeals)
    • Affirmed lower court decision in favor of the plaintiff, who was awarded $325,000 for a claim of assault.
    • Raess, a cardiovascular surgeon, had advanced on Doescher, a perfusionist, with clenched fists, and popping veins, shouting “you’re finished, you’re history.”
    • Expert witness (Workplace Bullying Institute) categorized the event as workplace bullying.
    • Appeal affirmed that the phrase “workplace bully” is entirely appropriate in presenting to a jury, and bullying may be considered an intentional form of infliction of emotional distress.
success of lawsuits2
Success of Lawsuits
  • Noonan v. Staples (1st Cir. 2008)
    • Manager claimed he was humiliated when his manager sent a mass e-mail to 1,500 employees, saying that he had been fired for violating the company's travel & expense policy
    • Court ruled that the e-mail was meant to single out & humiliate him, & the company should not have identified him by name (even though the information was true)
is your workplace full of bullies
Is Your Workplace Full of Bullies?
  • Success at all costs
  • Strong personalities and aggressiveness are valued
  • Personal friendships take precedence over business decisions
  • Employees are motivated by fear
signs of workplace bullying
Signs of Workplace Bullying
  • Decrease in production
  • Increase in resignations/transfer requests
  • Increase in hotline calls and complaints
  • Increase in work schedule changes
is bullying present at your workplace
Is Bullying Present At Your Workplace?
  • Survey bullying-tolerance level at the workplace
    • Absenteeism – why?
    • Any recurring issue in specific department or with a specific supervisor?
  • Categorize employee turnover data
    • Any trend or outlier terminations in a specific department or supervisor
  • Expand issues covered in exit interviews
    • Cover soft workplace environment issues
    • Cover effectiveness and interpersonal relations of supervisor
is she a bully
Is She A Bully?
  • Challenging authority
  • Regularly becoming argumentative
  • Alienating clients
  • Originating and spreading lies
  • Swearing excessively
  • Making verbal threats
  • Blatantly disregarding organizational policies and procedures
bully v tough boss
Bully v. Tough Boss


Tough Boss

Objective, fair and professional

Self-controlled and unemotional


Organizationally oriented

  • Frequent misuse of power and authority
  • Focus on personal self-interest
  • Prone to emotional outbursts
  • Often inconsistent and unfair in their treatment of employees
what do juries expect
What Do Juries Expect?
  • Articulated policy
  • Prompt response, including evaluation of facts and investigation
  • Take reasonable action to prevent bullying and to put a stop to it when become aware of such conduct
employer involvement
Employer Involvement
  • Recent survey found 33% of employees believe their employer is “very engaged” in preventing bullying
  • Same survey revealed 43% believe their employer is “unengaged” and were unaware of any employer activity

-2010 WBI U.S. Workplace Bullying Survey

  • According to the Workplace Bullying Institute, less than 20% of U.S. employers have policies prohibiting bullying conduct.
  • In contrast, in Australia, which has some statutory prohibitions on bullying, 79% of employers said they had policies in place.
establish an appropriate policy
Establish An Appropriate Policy
  • Distribute widely
  • Conduct training
  • Some generalized anti-harassment policies may already cover general abusive conduct
  • “Civility/Dignity at work”
policy essentials
Policy Essentials
  • Describe appropriate business conduct
  • Define abusive conduct
  • Clear statement: won’t tolerate abusive conduct
  • Set forth a reasonable reporting procedure
  • Promises
    • No retaliation; and
    • Prompt investigation
  • Violation will lead to appropriate discipline
  • How policy will be monitored and audited
selection and training of supervisors and employees
Selection And Training of Supervisors And Employees
  • Selection:
    • Interview and reference check questions on interpersonal relations
  • Training:
    • The higher bar of appropriate business conduct (need not be unlawful before unacceptable)
    • Dignity at work
    • Distinguish between high performance standards/ work excellence and being abusive
    • Underscore company’s goal of being a preferred employer
expand performance evaluation criteria
Expand Performance Evaluation Criteria
  • Elaborate people skills evaluation criteria on annual performance evaluations
  • Introduce 360° evaluations.
  • Inquire about
    • Leadership style
    • Effectiveness as manager
    • Interpersonal skills
expand progressive discipline
Expand Progressive Discipline
  • Ensure anti-bullying policy violations treated as seriously as violation of anti-discrimination and harassment policies
  • Avoid trap: top results-driven employees are treated leniently
promptly investigate internal complaints
Promptly Investigate Internal Complaints
  • Necessary to qualify for affirmative defense
  • When on notice, act immediately and effectively
  • Monitor corrective behavior
  • Shows top-down commitment to maintain harassment-free working environment
  • Good employer practice to attract and retain employees
how you handle a bully
How You Handle A Bully
  • Violence or threats
    • Relieve them from duty
    • Investigate
    • Discipline/ Terminate
  • Outbursts, rude, demeaning
    • Document significant incidents
    • Address through discipline and/or performance management
  • Intimidation
    • Diligence by management
how you handle a bully1
How You Handle A Bully
  • Passive/Aggressive
    • Counsel them.
    • Be specific going forward regarding your expectations and address incidents where they are not met
  • Demanding
    • The Company has the right to make and enforce reasonable rules regarding its employees
    • Let bully know that employees must follow the rules or there will be consequences
example 1
Example 1
  • Jim is a new janitor. He complains the existing employees are hard on “new” janitors. There are 2 ringleaders. The other 4 on the team go along. They hide the cleaning materials from him, won’t assist him when assistance is needed, tease him, and expect him to do the hardest work.
  • Is this bullying? What do you do?
example 2
Example 2
  • Andrea says that her supervisor, Jenna, is hypercritical of her work. Jenna “micro-manages” her by checking when she comes and goes, berating her for small mistakes (and in front of other employees) and making snide remarks about what she wears. Andrea is distraught.
  • Is this bullying?
example 3
Example 3
  • John contacts the Hotline and reports that Manager Gary “dumb” and “stupid.”
  • Gary also is highly critical of John for minor mistakes and never acknowledges when he performs his duties in a timely and efficient manner.
  • During the investigation, thecorporate HR team learns that in the past month, 4 other employees (men and women) have made similar complaints to the facility’s managers about Gary’s style.
example 4
Example 4
  • Brian reports to his manager that his coworker Ben “glares at him,” “ignores him,” “tries to get other coworkers to ignore him,” and “is spreading rumors.”
  • Manager ignores Brian’s complaint even though Brian says the behavior has been going on for four months.
  • Brian reports to his managerthat when Brian was walking to his car after his shift, Ben was leaving the parking lot. Ben drove his car to almost a rolling stop and stared Brian down without saying a word.
question 14 700
Question 14: $700

Which of the following comments can you lawfully discipline an employee for saying to a group of employees:

  • “My supervisor is B. “Patient care at Mount

incompetent” Sinai would be much better with the NNU.”

  • “We should all sign D. None of the above

union cards.”

question 15 750
Question 15: $750

What percentage of first contract negotiations result in a contract between an employer and a union?

  • 98% B. 90%
  • 56% D. 13%