November 3rd, 2014

U-T: About California’s new law to train supervisors about abusive conduct

State to Workplace Bullies: Knock It Off
By Jonathan Horn, San Diego Union-Tribune, Nov. 2, 2014

When Stephen Cruz got a new supervisor a few years ago, his staff job at UC San Diego became something of a living hell.

The new boss would repeatedly yell at workers, scold them behind closed doors, tower above them at their desks, get visibly agitated and red in the face, and send out harsh emails when something went wrong. The emails didn’t include foul language but called out workers with phrases like “I told you,” or “I gave you a direct order,” evidence of what Cruz called extreme micromanagement.

“It may have been stylistic, but it was unacceptable,” said Cruz, who works on the medical school campus. “Yes, we need supervisors. Yes, we need managers. But we’re not at each other’s throats. We’re there to work on the mission of the university.”

Cruz, 46, said he considered the supervisor’s conduct — which improved after university and union involvement — to be abusive.

A state law taking effect Jan. 1 hopes to curb that behavior at the start. The legislation, authored by Assemblywoman Lorena Gonzalez, D-San Diego, requires that employers in California with 50 or more workers include lessons on anti-workplace bullying when they carry out state-mandated sexual harassment training for supervisors every two years.

The hope is that those in charge would take a step back and realize how they may be managing employees could be harmful, as well as see how employees they supervise could be treating each other abusively.

“I’m not sure if it will completely eradicate the issue,” Gonzalez said. “This isn’t a burdensome regulation. This is just smart business, and it’s good for the employer and it’s good for the employee.”

Assemblyman Brian Jones, R-Santee, who voted against the measure, said it isn’t the government’s job to regulate relationships among employees.
“Employers are responsible in California and know what kind of training that employees need to prevent that kind of behavior in their workplace,” he said.

Unlike sexual harassment, workplace bullying is not illegal, so long as it is not based on protected classes like race, religion, or sexual orientation. That means an employer is not legally liable should bullying occur in the workplace. Most organizations could still fire the offending employee. Gonzalez’s bill doesn’t define how much time an employer has to spend on workplace bullying as part of the two-hour sexual harassment training.

A key reason that general bullying at work isn’t illegal is because it’s hard to define. For instance, where do you draw the line between a supervisor who is incredibly demanding, versus a workplace bully who abuses employees? That answer is in the eye of the beholder.

Phil Blair, CEO of Manpower San Diego, a staffing agency with about 100 corporate employees, said workers need to be held accountable to complete their tasks.

“A harsh boss that says you need to hit these goals, or you’re not going to be around here, if I were the recipient of that I would feel like I was being bullied. But that’s the job,” Blair said. “I don’t think (workers are) soft, I think they’re under a lot of pressure.”

Dan Eaton, an employment attorney at Seltzer Caplan McMahon Vitek, said making workplace bullying illegal would unleash a wave of petty lawsuits. He said he was unsure whether the anti-bullying training would make any impact at all.

“It will be interesting to see if it has any effect and whether its effect can even be measured,” said Eaton, who mostly represents employers. “One person’s bully is another person’s rigorous disciplinarian.”

Gonzalez’s bill says abusive conduct may include “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 a person’s work performance.” It says a single act does not constitute abuse unless it is especially severe and egregious.

The Workplace Bullying Institute, based in Bellingham, Wash., has lobbied unsuccessfully for years to outlaw abusive conduct at work. Gary Namie, who leads the institute, said academia and medicine are the two fields where it’s most prevalent. He gave an example of nurses bullying each other or a principal berating a teacher. He said bullying can lead to decreased motivation, leaves of absence, depression and other avoidable conditions.

A 2008 survey of employees at Wayne State University and State University of New York New Paltz, by professors Loraleigh Keashly and Joel Neuman, found that those on the faculty were likely to identify colleagues as bullies, while front-line staff were more likely to identify their supervisors as bullies. Additionally, they found that faculty were more likely than front-line staff to be “mobbed,” or bullied by three or more people.

Around the country, legislators in about 30 states have introduced a version of a measure pushed by the bullying institute to outlaw abusive conduct at work altogether, but only Tennessee has a related law on the books.

Earlier this year, Tennessee passed a bill that outlaws workplace bullying at its public agencies. The law requires a state body to create a training program against workplace bullying, which, if adopted by individual agencies, would protect them from legal liability (but not individuals). In California, a 2003 measure to outlaw bullying authored by Assemblyman Paul Koretz, D-Los Angeles, never got out of committee.

“I’m not a big proponent of just creating legislation that people can sue about,” Gonzalez said. “I think our laws really should reflect that people are going to try to do the right thing.”

To remedy his situation, Cruz and others in his department sought help from Teamsters Local 2010, which represents 14,000 administrative support staff at UC schools statewide and urged Gonzalez to introduce her bill. Cruz said he didn’t want to leave UCSD, where he has worked since 1993. Plus, university consolidation made it hard to transfer, and the slow job market meant it was unrealistic to leave.

In its analysis, the Assembly Appropriations Committee said the bill would impose minor costs in updating sexual harassment presentations, and minor or absorbable costs to the Department of Fair Employment and Housing for enforcement. It did not specify dollar amounts.

The California Society of Human Resource Management did not take a position on the legislation.

“Other than the initial investment in terms of updating their slides, it doesn’t impose a lot of additional costs along employers,” said Michael Kalt, the organization’s legislative director, also an employment attorney at San Diego’s Wilson Turner Kosmo.

Alisa Shorago, a San Diego attorney who provides training for industries such as biotech, manufacturing, construction and nonprofits, said the change won’t be big for her because she already includes information on general abusive conduct in her presentations. Her training involves questions and answers with supervisors, including asking them how they define a hostile work environment. She said the sessions are already packed in because most people don’t want to go beyond the mandated two hours.

Gonzalez’s bill passed with bipartisan support, with the only formal opposition from the California Association for Health Services at Home, which noted that nothing prevents an employer from already incorporating anti-bullying behavior into its existing training programs, but that the legislation increases costs through new mandates.

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