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Taking Aim at Workplace Bullies

Tennessee's recent passage of a limited-in-scope Healthy Workplace Act begs the question: Will lawmakers from other states soon follow in its footsteps with something more substantial?

Thursday, July 10, 2014
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Anti-bullying legislation continues to gain momentum in state legislatures, with Tennessee becoming the first state to pass anti-bullying legislation.

On June 17, Tennessee Gov. Bill Haslam signed into law the Healthy Workplace Act, a law that affects the practices of state and local government agencies. Private employers are not affected.

The law defines "harassment, intimidation or bullying" as any act that "substantially interferes with a person's work performance or creates an intimidating, hostile or offensive work environment," and  instructs the Tennessee Advisory Commission on Intergovernment Relations to create a model policy by next March. Employers have the option to adopt the TACIR policy or not. Those deciding to enact it would be immune from claims arriving from bullying behavior.

Proponents of anti-bullying legislation and experts believe other states could soon follow in the Volunteer State's footsteps, with some pointing to New York and Massachusetts as the most likely to pass anti-bullying laws that would also include private-sector employers.

So far, 28 states have introduced anti-bullying legislation this year, according to the Workplace Bullying Institute in Bellingham, Wash.

In June, Puerto Rico Governor Alejandro Garcia Padilla vetoed legislation that would have held both public- and private-sector employers in that territory accountable for workplace bullying. In doing so, Padilla pointed to the Department of Justice's view that the definition of "workplace harassment" is too vague and the fact that victims of workplace bullying can still seek protection under the territory's Constitution.

Gary Namie, national director of the Workplace Bullying Institute and a chief architect of the Healthy Workplace Act, says his reaction to the Tennessee law is generally positive. Any legislation that focuses on abusive conduct in the workplace breaks the silence, he says. "You're going to have all of the institutions talking about it now."

But while he considers the Tennessee law a good first step, Namie adds that he's disappointed by the legislation's limited scope and authority, describing it as a "gutted" version of the Healthy Workplaces Act.

Namie notes that it's also unfortunate that under the act "all of the processes still happen in-house under a shroud of secrecy . . . . "Everything remains internal."

Recent studies confirm that bullying continues to be a widespread and troubling issue in workplaces.

One study, released in June by Provo, Utah-based VitalSmarts, found that 96 percent of 2,283 individuals had experienced some form of workplace bullying. What's more, the survey found 86 percent of bullies have been at it for more than one year and 54 percent have been doing it for more than five years.

Only 51 percent of the respondents reported their companies had a policy in place for dealing with bullies, with only 7 percent saying they know someone who has used that policy.

Further, the research revealed that workplace bullying can take many forms, with 62 percent of respondents reporting efforts to sabotage others' work and reputations; 52 percent witnessing or experiencing browbeating, threats and intimidation; and 4 percent observing or experiencing physical intimidation and assault.

But while workplace bullying is certainly evident in many workplaces and can take many forms, business groups have voiced serious concerns over the introduction of any new legislation.

"Many of the activities related to bullying are already protected against under existing laws," explains Mike Aitken, vice president of government affairs for the Society for Human Resource Management in Alexandria, Va. "So our perspective is [that] most of this can be addressed through education and voluntary efforts."

According to a 2012 SHRM study of around 400 HR practitioners, only 3 percent of organizations have a separate workplace bullying policy in place, while 40 percent include bullying as a part of another workplace policy. Thirteen percent indicated that they planned to put a policy in place in the next 12 months.

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These statistics are very much in line with what Tucker Miller sees happening at client organizations. Miller, assistant vice president of client consulting for Employment Learning Innovations , an Atlanta-based compliance, ethics and workplace-behavior training firm, notes that few of the companies she works with have specific policies that address bullying, though many do include it as a part of a broader harassment policy.

Craig Cowart, an attorney in the Memphis office of Fisher & Phillips, believes the Tennessee law provides further evidence that policymakers at the state level are serious about addressing this issue. "While the bill passed in Tennessee only applies to government employers and not to those in the private sector, and it doesn't create an express cause of action, I think it does send a signal that the move to address bullying in the workplace is gaining momentum," he says.

Cowart notes that he's somewhat surprised to see Tennessee become the first state to pass a law, considering the conservative leanings of lawmakers in that state.  But that also partly explains why the final bill excludes provisions that could result in more lawsuits, he adds.

Going forward, Cowart's advice to government agencies in Tennessee is to pay close attention to the model policy created by the TACIR and determine if it's a policy they'd be comfortable introducing in their workplaces.

As for nongovernment entities in Tennessee and other states, Cowart suggests the timing might be right to consider putting in place a dedicated workplace bullying policy. "Though it's not required by law," Cowart says, "such policies can be especially effective in avoiding other lawsuits involving discrimination, harassment or emotional distress."

Doing so, however, won't be without its challenges. "I think a lot of employers have looked at putting in a policy and [have] found it very difficult to put down in black and white what constitutes bullying," Cowart says.

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