As we discussed in the September 22, 2014, issue of California Employment Law Letter (see “Be prepared for new paid sick leave law and more in 2015!”), the California Legislature enacted Assembly Bill (AB) 2053, requiring employers to include antibullying (“abusive conduct”) training as part of their sexual harassment training effective January 1, 2015. So far, no state has had the gumption to adopt an outright prohibition against workplace bullying.
With commentators and policy makers regularly documenting the adverse Impact bullying has on productivity, morale, attendance, turnover, and medical and workers’ compensation claims-and with statistics indicating that bullying is nearly four times as prevalent as illegal harassment-we need to ask: Why hasn’t there been a groundswell of legislative support for antibullying policies at either state or local levels?
Why Not Prohibit Workplace Bullying?
There are two answers. First, many public employers believe their existing rules of conduct provide an ample basis for investigating and appropriately resolving bullying claims. They point out that under their existing policies, discourteous treatment, conduct unbecoming a public employee, violence, harassment, intimidation, or abuse of authority are all “causes” for discipline. These causes, they assert, are broad enough to cover bullying behavior.
Second, many public employers fear that an explicit prohibition against bullying behavior will fuel unwarranted grievances and lawsuits over personality conflicts, impede management’s ability to supervise and discipline errant employees who believe their supervisors have bullied them, and allow employees to “game the system” at the expense of public employers.
For instance, commentators on unsuccessful New York legislation said, “Anti-bullying legislation would allow employees having nothing more than ordinary disputes and personality conflicts with their supervisors and co-workers to threaten their employers with litigation. Surely some of these disputes would end up in court even though they wouldn’t rise to the level of actionable bullying.”
These answers aren’t entirely satisfactory. Proponents of antibullying policies maintain that workplace bullying can be prevented only through specific policies and procedures, effective education and training of all personnel about the perils of and prohibitions against bullying, and rigorous enforcement of “zero-tolerance” policies. Pointing to the experiences of other countries that have implemented antibullying policies, proponents also maintain that fears of abuse by “gamers” of the system are exaggerated and can be alleviated through proper administration of well-written policies.
Pointers for Drafting Antibullying Policies
So far, very few antibullying policies exist in the public sector. Nevertheless, given the prevalence of workplace bullying, personnel managers should consider the pros and cons of implementing such a policy. What are the possible components of an antibullying policy? Here’s our compilation of options:
- A tailored definition based on an objective standard;
- Examples of prohibited behaviors;
- Emphasis that the policy doesn’t prohibit appropriate supervision and discipline of employees;
- Descriptions of the appropriate avenues for reporting bullying and the process you will follow in addressing the complaint;
- Prohibition on retaliation against employees who report bullying;
- A prescription for regular training;
- A reference to the availability of the agency’s employee assistance program (EAP) for addressing concerns about workplace bullying; and
- A hotline for reporting bullying, harassment, or discrimination.
Sample policies and other relevant information can be found at http://publiclawgroup.com/ publications/articles/workplace-bullying/.
California’s New Workplace Antibullying Training Requirements
Effective training is essential to prevent workplace bullying. A model for such training is California’s AB2053, which requires employers with 50 or more employees to add an “abusive conduct” component to the sexual harassment prevention training already required for supervisors. The two-hour training must be conducted by persons with proper knowledge and must provide interactive and practical educational guidance on abusive conduct and on federal and state laws governing sexual harassment. Showing a video will not suffice.
Here are three important points to remember:
(1) Jurisdictions that don’t have antibullying policies should consider the pros and cons of implementing one.
(2) In unionized workplaces, employers must give unions notice and an opportunity to request bargaining before implementing an antibullying policy. Unionized employers also need to be sure their proposed policies are clear enough to avoid interfering with employees’ rights to express themselves regarding terms and conditions of employment.
(3) AB2053 requires California employers with 50 or more employees to provide abusive conduct training every two years. New supervisors must receive training within six months of promotion or hire.