January 8th, 2012

Why the Healthy Workplace Bill requires a private attorney to sue

Many people want a law against workplace bullying. The official campaign for this legislation began in California in 2002 (first bill introduction in 2003) and turns 10 years in 2012. The text of the bill was written by Suffolk Law Professor David C. Yamada for Workplace Bullying Institute founders to take to state houses throughout the land.

So, here we educate site visitors about a key part of the HWB as introduced in the 21 states since 2003. The bill requires the “private right of action.” That means that individuals wanting to sue using the bill after it becomes law must rely on an attorney they find and hire. There is no government involvement.

If you were to want to be a plaintiff in a discrimination lawsuit, you must first go through the federal EEOC with your complaint. The EEOC will eventually give you permission to sue with a “right to sue” letter. Then, your case would require you pay for a private attorney.

If you allege that your employer violated either a state or federal occupational safety regulation, you would necessarily file a complaint with your state’s OSH department or the federal Dept of Labor/OSHA. Government gets involved. Unfortunately, U.S. occupational safety and health regulations are scant. Worse yet, employer penalties for confirmed violations are laughable. Preventable death of an employee costs only $10,000! Fines are a joke. Inspections are pre-announced and toothless.

Federal OSHA has been de-fanged by the combination of (1) deliberate gutting of budget adequacy by political opponents of both parties (corporate loyalists) in Congress for many decades that dictates too few inspectors in a large country, and (2) a reluctance to regulate and punish unsafe employers that converted to OSHA’s push to help employers “comply.”

Here are the arguments in favor the “private action” provision contained in the HWB.

1.) When state agencies process complaints for citizens, it costs the State money. Staff time is required for intake interviews, data coding, investigations, adjudication, appeals, and case completion. State money is better spent on requisite social services during austere times.

Our appeal to legislators to enact the HWB involves persuasion and convincing. One of the bill’s most attractive features is that it will be “revenue neutral.” It will not cost the state money when it becomes law.

2.) A second reason to elect private right of action over state enforcement is the transparency that court filings provide. Employers can be held accountable via lawsuits and press attention. Bullying situations may be resolved to preserve positive public relations by employers.

With state involvement, especially using OSH violations, accused employers and individuals are assured secrecy under the cloak of confidentiality. Similarly, retaliation of complainants (a routine practice) is kept hidden from view.
Secret internal complaint handling by employers is one of the factors accounting for workplace bullying’s prevalence. Abuse conducted behind closed doors can be denied and not dealt with. That prevalence was demonstrated in two national representative (scientific) surveys in 2007 and 2010 by the Workplace Bullying Institute.

3.) Third, state agencies have slow bureaucratic processes. Even if we assume state staff are expert investigators, current agency cases languish for years. Proceedings are drawn out when employers contest jurisdictional issues. For example, a person using the state is stalled while the employer argues over whether the case is governed by workers compensation laws or disability or should be in civil court. Years pass. No progress.

4.) Fourth, state and federal OSH violations result in insufficient penalties to discourage future instances of health-harming abusive conduct in American workplaces. When cases require retributive justice to ameliorate bullying, gentle recommendations or calls for voluntary change fall short.

Additionally, the health-harm effect threshold found in the HWB is not a simple statement about what is required to ensure that workplace bullying happens. Bullying happens long before health harm is demonstrable. However, if one wants to use the courts to seek justice, there is an additional requirement. It is not enough to have been bullied to file a lawsuit. I think we all agree that courts should not be clogged with trivial (hurt feelings) cases. Rather, when bullied targets are traumatized and seriously impaired, the probability of being taken seriously by the court increases.

5.) State agency directors are political appointees. Governors bring their own partisanship to state governance. When a particularly rabid anti-worker governor gets elected (in 2010, this is exactly what happened in Michigan, Indiana, Wisconsin, South Carolina). It is certain that no state agency would faithfully investigate workers’ complaints of abusive mistreatment by employers who have contributed to the Governor’s election campaign. In other words, prosecution of investigations and enforcement will depend on the political leanings of the administration in power at the time.

6.) State involvement permits free complaint filing by individuals. Genuinely bullied targets would want to file, but bullies will likely use the process to attack their targets, this time with the state’s help. The beauty for bullies is that the state would absorb costs. No attorney need be retained. It’s free to make trouble for others.

Thus, state involvement increases the risk of frivolous complaints. Whereas a reliance on private right of action forces individual plaintiffs to pay for an attorney. The cost prohibitive nature of lawsuits screens out cases without merit, and courts can easily dismiss cases without merit. Free filing exposes the process to risk from bullies determined to abuse the process.

Given the above 6 reasons, we discourage state lawmakers from abandoning the “private right of action” provision of the HWB. This is not the time to strain already scant state fiscal resources.

Gary Namie
Healthy Workplace Campaign

For another tutorial on the HWB, read this article.

This entry was posted on Sunday, January 8th, 2012 at 8:05 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.

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  1. […] Namie, the director of the Workplace Bullying Institute, this week issued a defense of the HWB  which the institute has supported since it was drafted by Suffolk University Law Professor David […]

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  3. […] Namie, the director of the Workplace Bullying Institute, this week issued a defense of the HWB  which the institute has supported since it was drafted by Suffolk University Law Professor David […]