Labor law: Beware bullying in the workplace

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If employers have not heard the term “status blind harassment” they should familiarize themselves with the issue, local attorneys and human resource managers say.

Status blind harassment is more commonly known as workplace bullying, said Joan Rennekamp, human resources consultant with the law firm Rothgerber Johnson & Lyons in Colorado Springs.

Insiders also call it “equal opportunity harassment” meaning that bullying can happen to anyone and is distinguished from harassment targeted at certain groups of workers protected under federal and state statutes, which are gender, race, ethnicity, age, religion and sexual orientation.

Workplace bullying is an issue that captures media attention when it escalates to violence. But, even when the bullying is more subtle, it creates a hostile work environment to which employers should pay close attention because it could be costing them money.

Experts say bullying can result in loss of employees, a high number of sick days and can damage morale. In a 2007 workplace survey, commissioned by the Workplace Bullying Institute, Zogby International reported that 35 percent of respondents experienced bullying firsthand in the workplace and that bullying is four times more prevalent than illegal harassment.

Job stress, which in some cases is related to bullying, costs U.S. companies $300 billion a year in lost time and health claims, according to the National Institute of Occupational Safety and Health. The figure is sometimes disputed, but local attorneys and HR managers say there is no denying that bullying leads to stress which leads to low productivity.

The largest expense to employers is down time, said Ian Kalmanowitz, an attorney with the Springs law firm Cornish & Dell’Olio.

“I had one case where a guy was struck by the bully,” he said. “He went out on FMLA (Family Medical Leave Act) leave — that is a significant loss of productivity,” Kalmanowitz said. “His manager lost time in dealing with the complaint and if it leads to litigation it is a significant expense to the employer.”

Further complicating the issue is the rise of workplace incivility, which often is defined as a snub or the snarky comment or the interruption of a co-worker speaking in a meeting.

Incivility is just as troublesome as bullying, said Evan Abbott, Mountain States Employers Council director of organizational development and learning. But, it is even more difficult to define, identify and prevent.

“If workplace violence is the tip of the iceberg, incivility — all interactions and behaviors that don’t rise to legal issues — is the stuff that makes up the base of that climate,” Abbott said.

No matter what it’s called or how overt or subtle it is workplace bullying, incivility and bad behavior add up to lost productivity, Abbott said.

“Of those who said they feel they have been treated uncivilly at work, 47 percent say they spent less time at work to avoid the instigator,” Abbott said

In recent years, there has been an attempt by some states to legislate bullying in the workplace. Since 2003, 21 states have introduced Healthy Workplace legislation, which typically defines workplace bullying as any kind of repeated speech or act that is considered threatening or humiliating, according to the Healthy Workplace Bill website.

To date, no state has laws against workplace bullying.

However, that does not mean employers are off the hook. In the absence of anti-bullying laws, an employee could bring a negligent hiring, negligent supervision or negligent retention case against an employer, especially if there had been repeated attempts to tell a supervisor or HR personnel of the problem, Kalmanowitz said.

“If the employer is on notice that there is a propensity of bullying and they fail to take action, there may be a negligent claim,” Kalmanowitiz said.

It doesn’t have to be that way, he said.

“My advice to employers, first and foremost, there needs to be open lines of communication for employees to communicate these potential grievances to management,” Kalmanowitz said. “There needs to be respect for all parties. Don’t just look at a claim and outright dismiss it.”

Employers need to recognize that addressing bullying is in their best interests, Rennekamp said. There are a number of strategies employers can do to create a healthy work environment, free of bullying and incivility.

An employer could address anti-bullying in a company policy if they think it is a problem, Rennekamp said.

“It is OK to mention that you prohibit bullying and harassment,” she said. “So, an employee feels like they can address it.”

The key is for employers to build trust. Employers could establish a reporting route, similar to how an employee could report harassment. They also could give a climate survey, which might reveal patterns of bullying or feelings of intimidation.

And, when an employer discovers bullying, they might consider providing skills training or coaching for the bully.

“Let’s say you discover someone is bullying other people, you could give them the tools to get their job done,” she said. “People get stuck in their habits or behavior.”

But, when the bullying persists, even after warnings, employers need to terminate repeat offenders.

“The bottom line is companies need to do what they can to make sure (bullying) is not happening in their company,” Rennekamp said. “It’s in employers’ best interests to figure out if it is going on — you want to keep your valuable people.”