Wednesday, May 26, 2010

If New York Is First to Pass Anti-Bullying in the Workplace Legislation, Will the Ghost of its Former Governor Teddy Roosevelt Be Heard to Say: “Bully! Bully!”

On May 12, 2010, the New York State Senate, by a 45-16 vote, passed legislation that would create a private cause of action for what the proposed legislation calls “an abusive work environment.” The legislation now goes to the New York State Assembly for consideration.

The proposed legislation defines “abusive conduct” as follows:

“Conduct, with malice, taken against an employee by an employer or another employee in the workplace that a reasonable person would find to be hostile, offensive and unrelated to the employer’s legitimate business interests. In considering whether such conduct is occurring, the trier of fact should weigh the severity, nature and frequency of the conduct. Abusive conduct shall include, but not be limited to, 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 an employee’s work performance. A single act shall not constitute abusive conduct, unless the trier of fact finds such act to be especially server or egregious.”

Malice is defined as the “intent to cause another person to suffer psychological, physical, or economic harm, without legitimate cause or justification.” And, malice “may be inferred from the presence of factors such as outward expressions of hostility, harmful conduct inconsistent with an employer’s legitimate business interests, a continuation of harmful and illegitimate conduct after a complainant requests that it cease or attempts to exploit the complainant’s known psychological or physical vulnerability.” Both physical and psychological harm must be documented or supported by a competent physician or competent expert evidence.

The proposed legislation has an affirmative defense akin to the Faragher/Ellerth affirmative defense used in federal sex harassment cases. There is a one-year statute of limitations, running from the last abusive conduct which is the basis of the allegation of an abusive work environment.

Remedies include lost wages, medical expenses, compensation for emotional distress, punitive damages, and attorneys’ fees. If the employer’s abusive work environment did not result in a “negative employment decision,” defined as a termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, or disciplinary action, then the employer’s liability for damages for emotional distress is capped at $25,000 and it shall have no liability in such circumstances for punitive damages.

As of the latest from the Workplace Bullying Institute, 17 states have introduced similar legislation since 2003; to date no state has enacted such legislation. In addition to the pending New York legislation discussed above, the Illinois and New Jersey legislatures also have active anti-workplace bullying legislation in the hopper.

Court cases are already on the rise regarding appropriate behavior between employers and employees. Compare Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2001) (“It is [] important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals."), with Raess v. Doescher, 861 N.E.2d 1216 (Ind. Ct. App. 2007). In Raess, the Indiana Supreme Court, over the dissent of one judge, declined to decide whether it was error to admit the testimony of a so-called “bullying expert.” A cardiac surgeon who was accused of being a workplace bully because he yelled at a co-worker, was sued by the co-worker for intentional infliction of emotional distress, and the trial court permitted a so-called “bullying expert” to testify. The Supreme Court did state as follows: “The phrase ‘workplace bullying,’ like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining the issues before the jury. As evidenced by the trial court’s questions to counsel during pre-trial proceedings, workplace bullying could ‘be considered a form of intentional infliction of emotional distress.’”

For more information on bullying, see David Yamada, Workplace Bullying and the Law: Materials for Scholars and Practitioners, available here; David Yamada, Potential Legal Protections and Liabilities for Workplace Bullying (June 2007), available here; Tresa Baldas, States Take Aim by Taming ‘Bully Bosses, Nat’l L. J., Apr. 9, 2007; BullyBusters.org, State-By-State Legislative History of the Anti-Bullying Healthy Workplace Bill, available here (last visited May 9, 2007); Rebello, “States Weigh Anti-Bullying Laws,” Lawyers USA 3 (March 12, 2007).

Tip of the hat to the New York Labor and Employment Law Report for bringing this to our attention.

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