July 14th, 2014

Healthy Workplace Bill legislation: A 2014 perspective on distorted amendments

The Healthy Workplace Campaign is WBI’s effort to enact anti-bullying legislation for the American workplace state by state. The model bill is called the Healthy Workplace Bill (HWB).

Features of the HWB

• Suffolk University Law Professor David C. Yamada, text author, used federal Title VII Civil Rights laws as basis

• Defines severe abusive conduct — does not use term workplace bullying

• Provides legal redress for anyone subjected to abusive conduct, whether or not the person is a member of a protected status group

• Requires that abusive conduct result in either demonstrable health or economic harm to plaintiff

• Plaintiffs who file lawsuits make public formerly hidden, confidential employer processes that hide and deny bullying

• Prohibits retaliation against any participant in procedures involved in dealing with the abusive conduct complaint

• Requires plaintiffs to hire private attorneys, no fiscal impact on state government

• Provides incentives (affirmative defenses) for employers who implement genuine corrective procedures

• Preserves managerial prerogative to discipline and terminate employees

• Does not interfere with state workers’ compensation laws or union CBAs

We named the HWB in 2002. All other uses of the name HWB are unauthorized by us. California first introduced the HWB in 2003. It has been carried in over half of states and two territories since. The Workplace Bullying Institute trains and provides support to a national network of volunteer Sate Coordinators who lobby their respective state legislators to sponsor the HWB. You can track its status at the HWB website.

Botched Amendments & Unanticipated Consequences

As authors of the HWB, we naturally want the full and original version of the bill enacted into law. And we realize compromises will be made during the process. It is “sausage making,” after all. We just wish all bill sponsors would refuse to allow major revisions that change the spirit of the bill from protecting abused workers to something else. Since the HWB was first introduced, different amendments have been proposed or made.
Often the well-intended sponsor, a pro-worker advocate, agrees to compromise adopting the belief that the law can be built in steps. Let’s get this version passed now and it will be revisited in the coming years and supplemented with the other desired provisions.

This magic thinking flies in the face of documented reality that only business-originated and business lobby-supported legislation gets passed in America.

Some of the distortions (amendments) made to the HWB that betray its original intent are listed here.

Task Forces to Study Bullying. This would be a credible step if nothing were known about the prevalence of bullying in the U.S. However, there have been three national scientific studies done by WBI. Lawmakers would be stunned to know that empirical research on the topic began in the 1980’s in Europe. By converting the bill into a study-only one is a stalling tactic. The first state to use the Task Force obfuscation tactic failed to fund the group. The excuse to study the phenomenon was exposed as disingenuous.

Exemptions for Religious Expression. Workers are protected against religious persecution by both federal and state anti-discrimination laws. They have the most powerful protections that exist in American law. Yet, zealots sometimes convince bill sponsors to insert language exempting employees who seek to proselytize coworkers from being accused as abusive. Exemptions for any group betray the HWB. A key feature of the bill is to protect all workers, ignoring gender, age, religion, disability, and race criteria required of anti-discrimination laws. To include exemptions makes one group more special than all others.

Sadly, we learned that arguments using “religion” are used by some anti-LGBT groups to advance their anti-homosexuality agenda. That is, they claim that our bill designed to protect everyone from abusive conduct is, in fact, pro-LGBT legislation. Would the bill protect people from the LGBT community? Yes. Would it protect the gay haters, too? Yes. What is it about protecting everyone that is not clear? Haters cloaked in religious garb lobby for this kind of amendment.

Policy Approaches. The HWB definition of “abusive conduct” is retained and every other provision is stripped away. Then, employers are “encouraged” to implement a policy. The first problem with this approach is that policies are necessary but hardly sufficient to compel employer correction of abusive conduct. Policies can make lofty, flowery pronouncements but without credible enforcement done while facing risk of punishment for doing nothing, policies are ineffective. Employees come to realize quickly their employer has no intention to hold favorite (& bullying) employees accountable to policy prohibitions. The second problem with Policy-only approaches is that employers keep the complaint-investigation-correction processes internal and confidential. Bullying thrives with secrecy. The HWB, with its implicit threat of public litigation, would shed light on employers’ dirty little secrets surrounding bullying. Sunshine is needed. Resolution by policies keeps bullying in the dark.

The third problem is related to the second. Internal resolution as the only option for aggrieved employees allows employers to serve as perpetrator, investigator of its own perpetrator and adjudicator of complaints about the organization itself. Little wonder then that internal investigations conclude that no harm occurred and only “personality conflicts” were to blame. Finally, the fourth problem arises when a distorted HWB becomes a mandated policy law that stipulates the contents of the policy. Mandating details of policies precludes any customization of the policy to the workplace culture where it must operate. Employers will always choose a policy given to them, too lazy to modify to accommodate unique aspects of their culture. They want a simple tearsheet, “one size fits all” easy-to-do policy.

State Agency Involvement. Trusting employers and governing agencies to rectify bullying situations in a fair and credible manner is what got bullied targets into trouble originally. HR botches internal proceedings from the target’s perspective. But in a way that is as much wrong-headed expectations as it is HR’s failure to make clear they are not a neutral trier of facts. HR is a management support function. State labor departments, as well, are not neutral if the employer is a government agency. We should not expect neutrality or objectivity.

The HWB was created to have facts heard in courts of law, not internal self-sustaining employer-based departments. The second problem with involving government to handle complaints is that costs are associated. That means the bill will have a “fiscal note” attached to it by the agencies called upon to resolve complaints. State agencies have uniformly opposed the HWB because they fear liability as employers. The HWB places responsibility for adjudication in courts precisely to avoid government costs. The HWB needs to create no fiscal burdens for the state to enhance the likelihood of passage.

No Employer Accountability. Perhaps the most grating aspect of workplace bullying is that it operates with impunity in most organizations. Good people think that such destructive negative conduct is abhorred by employers and that all act responsibly to stop it. The truth shocks naive observers. The HWB brings vicarious liability to employers for abusive misconduct when they blithely ignore it. That is, employers face lawsuits if proper steps to “prevent and correct” are not taken. Employer vicarious liability for harassment has been present since 1998 for Title VII violation offenses. Of course, the business lobby (chief among them every state’s Chamber of Commerce and NFIB) floods state lawmaker campaign coffers with gold if they kill or stall the HWB’s progress through a legislature.

If the business lobby cannot completely kill the bill, they find lawmakers willing to do the bidding for employers by gutting the bill. They remove the employer liability clause. This is done by completely ignoring the sophisticated set of affirmative defenses that enable all employers to escape legal liability by simply establishing internal prevention and correction mechanisms to deal with abusive conduct. Good employers have nothing to fear from the HWB. However, business lobbyists lie in committee testimony ignoring the escape from liability built into the HWB. Spineless lawmakers, then meekly do what the Chamber tells them.

Benefits for Special Populations Only. This is a common incremental approach. The HWB is amended slightly to apply to only public sector workers. Covering all public sectors extend protections to employees of state, county, and city government employers, tax-levying municipal districts (schools, fire, police), community colleges and state universities. The logical reason to implement the bill first with the public sector is to avoid opposition to the bill from the powerful, well-funded business lobbyists led by the Chambers of Commerce. The loss of corporate donors is a risk contemporary politicians of all parties are not willing to take. No amendment to make the HWB exclusive for private sector employers has ever been proposed. A 2014 study found that bills passed into laws in the U.S. are only the ones advanced by the business lobby.

Benefits for Union Members Only. WBI has always supported unions. Its director is a union member. We have trained several unions and several unions have sent members to WBI training. It is an insult to find some unions steal the title “Healthy Workplace Bill” for their own legislative efforts. Then, they change the bill to provide benefits only to their union members. For example, a state workers union claims protections for their own members only. This is a selfish act. Yes, they are advocates for their own members, but ignore the fact that the spirit of the HWB is to protect all workers.

Implementation by Stages. This could be based on time. Employers are given one year to prepare their internal programs before the law takes effect. Or employers, based on size, are phased in. Large employers typically have to comply with the law first, mid-size ones later, and small employers last with years between required implementation. The other kind of phasing in involves public and private sectors employers. Typically, public sector employers are held responsible for implementing a law first.

Remember, fear of the Chamber convinces most lawmakers to distance themselves from anything remotely resembling “regulation” of corporations. This is the new American credo. Protect businesses above all else. Workers — not worthy of concern. Implementation by stages is not a distortion of the HWB if the future stages are built into the law. On the other hand, if the law applies only to public sector employers with no date set to affect private sector employers, one reasonably can be certain, the issue will not be revisited by that legislature, ever.

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