Bullying in the workplace has become a widespread and known problem in the United States. After some high-profile suicides as a result of workplace abuse, including Kevin Morrissey, the managing editor of the Virginia Quarterly Review magazine, legislation was introduced in various states across the country to combat the abuse faced by many employees, including New York.[i]
Beginning in 2006, New York began introducing versions of The Healthy Workplace Bill.[ii] In 2010, New York tried to pass the Healthy Workplace Bill.[iii] If it had passed, it would have been the first “state in the country [to have] a law like this.”[iv] Instead, the bill was killed when the Assembly voted to “hold” the bill, rather than vote on it.[v]
In 2011, The Healthy Workplace Bill was again introduced in the New York Assembly and Senate. Assembly Member Steve Englebright was the prime sponsor of it in the Assembly and Senator Diane J. Savino was the prime sponsor in the Senate.[vi] Both bills, which are identical, recognized that “between 16-21% of employees directly experience health endangering workplace bullying, abuse and harassment.”[vii] Additionally, both bills state that this abuse in the workplace leads not only to health problems for the employee, but to “reduced employee productivity and morale, higher turnover and absenteeism rates, and significant increases in medical and workers’ compensation claims.”[viii]
The bills provide that an employee will be protected from “abusive conduct” and an “abusive work environment,” arising from: “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 an employee’s work performance” and results in “physical or psychological harm to such employee.”[ix] The bills also provides for remedies, including “reinstatement, removal of the offending party from the plaintiff’s work environment, reimbursement for lost wages, medical expenses, compensation for emotional distress [not to exceed $25,000], punitive damages [except for emotional distress] and attorney fees.”[x]
There are also certain affirmative defenses to such a claim, including that an employer “exercised reasonable care to prevent and promptly correct the abusive conduct . . . and the plaintiff unreasonably failed to take advantage of the appropriate preventative or corrective opportunities provided by such employer.”[xi] Thus, as long as the employer tries to remedy the situation, and the plaintiff fails to take advantage of the remedy provided, the employer is not supposed to be subjected to liability. Additionally, there is a one-year statute of limitations applicable to such claims.[xii]
Supporters have insisted that such legislation is particularly necessary now, arguing that that because of the high rate of unemployment in the country, workers are reluctant to leave their jobs and instead “[f]eel they have no choice but to stay put.”[xiii] As a result, employees are being subjected to abusive conduct without a remedy or a way to stop it.
The opponents of The Healthy Workplace Bill fear that such legislation will lead to an increase of frivolous lawsuits filed by disgruntled employees, “put[ting] [employers] at risk for nothing more than running a tight ship and expecting a lot from their workers.”[xiv] Others have stated such legislation is unnecessary as employees are already protected by anti-discrimination laws. [xv] Additionally, many employers have internal rules against abusive conduct, as well as the availability of human resource departments, which exist to facilitate a healthy working environment and combat threatening and inappropriate behavior.[xvi] These concerns appear to be the prevalent reason why The Healthy Workplace Bill has yet to be implemented in any state.
Either way, if this legislation is passed, which appears likely, it is clear that employment litigation will certainly increase as employees become aware of these new protections. It is also clear that employers will be forced to become more aware of workplace bullying and implement their own internal policies on how to combat it.
[i] See Tina Susman, State Bills Against Workplace Bullying Gain Traction, L.A. Times, Mar. 18, 2011, http://articles.latimes.com/2011/mar/18/nation/la-na-workplace-bullying-20110319.
[ii] See The Healthy Workplace Campaign, New York was the 9th State to Introduce the Healthy Workplace Bill, http://www.healthyworkplacebill.org/states/ny/newyork.php (last visited Apr. 26, 2011) [hereinafter The Healthy Workplace Campaign].
[iii] See id. (citing Sen. 1823 B, 2010 Sess. (N.Y. 2010)).
[iv] See id. (quoting NY Assembly Labor Committee Chair Susan John).
[v] See id.
[vi] See Assemb. 4258, 2011 Sess. (N.Y. 2011); Sen. 4289, 2011 Sess. (N.Y. 2011).
[vii] Id. § 760.
[ix] Id. § 761.
[x] Id. § 766.
[xi] Id. § 764.
[xii] Id. § 767.
[xiii] Adam Cohen, New Laws Target Workplace Bullying, Time, July 21, 2010, http://www.time.com/time/nation/article/0,8599,2005358,00.html; see also Susman, supra note 1.
[xiv] Cohen, supra note 13.
[xv] See Susman, supra note 1.
[xvi] See id.