Steve Jobs was a notoriously tough boss. Bill Belichik, perhaps the greatest coach in NFL history, is known to be demanding and dour (and currently unemployed). Would their styles survive the changing workplace standards of today? Would the new generation of workers, raised on anti-bully protocols at school, tolerate it? Will new legislation aimed at workplace behavior become the norm?
According to the Workplace Bullying Institute, 32 states have introduced Healthy Workplace Bills. Here is a map showing the status of the bills. NY, MA and WV currently have active bills pending, with two bills proposed in Massachusetts. If passed into law, many types of current management conduct would be illegal and employers would be liable for the behavior of its employees who bully, among other restrictions. Massachusetts would be the first to effectively impose workplace civility rules– but probably not the last.
Either of these MA bills would have an enormous impact on employment in the Bay State and perhaps the court system. Both bills provide a for private right of action (with attorneys fees in the House version) and do not rely on protected class status for a claim–can you say bring on the law suits? Let’s examine the two Massachusetts Bills:
House Bill No. 1882 aims to establish “Psychological Workplace Safety” and the title alone is a good indicator on how unworkable the bill would be. There is a long list of behaviors that would constitute psychological abuse, many that occur in the workplace regularly and are appropriate management actions. For instance: withholding information, assigning additional tasks without additional compensation, investigating employees, removing job duties–and the list goes on. Perhaps the most onerous burden would be holding employers responsible for “psychological abuse” between employees “outside the course or scope of their work.” Translation: if an employee gets harassed by another employee at a bar or someone’s home, the employer could be on the hook.
It would be unlawful to require a complaining employee to engage in mediation, arbitration or perhaps internal processes. Employers would have to develop and implement policies for preventing, investigating and resolving allegations of abuse, including requiring a “neutral third-party fact-finding professional investigation.” Mandatory annual workplace climate surveys and a provision for attorneys fees are also mandated.
This bill focuses on curbing an “abusive work environment” which is when an employer or one or more employees “with intent to cause pain or distress” subjects the employee to “abusive conduct that causes harm.” In the Senate bill, “adverse employment action” notably includes disciplinary action in the definition: termination, demotion, reassignment, failure to promote, and reduction in compensation.
Employers would be liable for conduct of their employees and could be individually liable for their own actions. An aggravating factor would occur where the conduct exploits an employee’s known psychological or physical illness or disability. A single act may not constitute abusive conduct unless severe and egregious. If the complaint is based on an adverse employment action, poor performance, misconduct or economic necessity can be raised as an affirmative defense if reasonably made. Courts as super HR departments!
Like the House bill, a private right of action (lawsuit) is allowed.
Last week, the Senate bill moved out of Committee with a favorable report and was referred to the Senate Ways and Means Committee. The House bill is in the Senate for review and may be reconciled with the Senate bill, combining certain provisions.
What Should Employers Do Now?
Stay tuned! We will keep an eye on these bills as we do with all states and trends nationwide. We offer training on all workplace issues as well. We can help. Contact us with any questions.