The problem of workplace bullying landed in the spotlight in October after Miami Dolphins offensive lineman Jonathan Martin claimed he had been singled out for race-based bullying on a number of occasions and left the team. Now, the Dolphins may face one or more legal claims arising from the alleged behavior.
Employers can be liable for claims associated with bullying because the conduct is often related to one or more legally protected characteristics, e.g., a bullying victim’s race, disability, religion, sexual orientation, etc.
Bullying is more common than most people realize. A 2010 study by Zogby International study showed that 35 percent of American workers experienced bullying now or at some point in their careers. In 2012, the Society for Human Resource Management reported that 51 percent of the employers it surveyed had incidents of bullying in their workplaces.
Employee-to-employee bullying can occur in various ways, including insults, the spreading of rumors, unwarranted criticism, exclusion from meetings or other workplace activities, exclusion from “off the clock” social gatherings, pranks and unreasonable work demands, among other things.
The cost to employers due to bullying is real. It’s no surprise studies show that bullied employees tend to be less productive than other workers. Other consequences include high employee turnover, excessive absenteeism and more frequent schedule change requests, all of which add to an employer’s human resources responsibilities and hurt efficiency.
Additionally, employers often see their insurance premiums increase due to more workers’ compensation claims filed on behalf of the bullied employees.
For all of these reasons, employers can (and should) proactively protect themselves against the legal risks of workplace bullying. Here’s how:
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1. Create an anti-bullying policy. This is often a portion of the code of conduct or anti-harassment policy within an employee handbook. Any policy should include the following:
• A definition of bullying and other unacceptable forms of harassment, including examples;
• Strong language that such conduct will not be tolerated and may lead to disciplinary action, including termination;
• An easy-to-understand reporting procedure for raising internal complaints of bullying;
• A statement that all employees are encouraged to report bullying, whether they experience it themselves or merely witness it among coworkers;
• A promise that all complaints will be taken seriously and investigated thoroughly;
• Assurance that retaliation for reporting bullying is prohibited; and
• The employer’s pledge that all complaints will be kept confidential to the extent confidentiality does not interfere with the employer’s ability to conduct its investigation.
2. Practice what you preach. Follow the anti-bullying policy. That entails training supervisors how to recognize and address workplace bullying. It also requires separate training for nonsupervisory staff regarding the prohibition against bullying, how to use the internal complaint procedure and what to do if they experience or witness bullying, whether in the workplace or outside the workplace between coworkers. A final step is to make available a confidential procedure for employees to follow in the event they experience bullying or feel unsafe in the workplace.
3. Document employees’ knowledge of the internal complaint procedure. Have them execute handbook acknowledgement forms, and maintain attendance sheets for training sessions.
4. Audit internal bullying complaints. Evaluate whether the audit results indicate that specific jobs or locations within your workplace are at higher risk for bullying or other harassment. The results can also suggest that additional or different training sessions are needed.
5. Conduct background checks for potential new hires. Employers should investigate whether a job candidate has a history of workplace bullying or violence, and make appropriate changes to job application materials.
Michael Volpe is a partner in Venable LLP’s New York office and cochairs the firm’s national labor & employment group. Nicholas Reiter is a labor & employment associate in the firm’s New York office. For more information regarding this article or issues related to workplace bullying, please contact Volpe at 212-808-5676 or [email protected] or Reiter at 212-370-6296 or [email protected].
