Workplace Bullying

1. Workplace Bullying Susan Harthill Professor of Law Florida Coastal School of Law

2. Outline • Workplace bullying • definitions, prevalence, costs • Existing U.S. laws • Focus on OSHA • Shortcomings and potential solutions • European, Canadian & Australian Law Reforms Susan Harthill

3. Workplace Bullying Defined • Repeated offensive behavior through vindictive, cruel, malicious or humiliating attempts to undermine an individual or group of employees. • Range of behavior, e.g., ostracism, ridiculing, shouting and verbal abuse. Susan Harthill

4. Helen Green v. Deutsche Bank • burst out laughing when she walked past • made crude and lewd remarks, • moved her papers, hid her mail, removed her from document circulation lists, • ignored and excluded her, • undermined her and increased her workload. Susan Harthill

5. Helen Green • developed a major depressive disorder • taken to hospital and put on suicide watch • suffered a nervous breakdown • ultimately unable to return to work. • There ought to be a law against this…is there? Susan Harthill

6. Prevalence (U.S.) • US (Employment Law Alliance 2007): • 44% of workers had been bullied • 64% believe an abused worker should have the right to sue to recover damages • WBI 2010 • 35% of adult Americans reported being bullied now or at sometime in their careers • 15% witness it Susan Harthill

7. Prevalence (U.K.) • UK • 2000 - 1 in 10 workers bullied in the last 6 months • Hoel & Cooper (2000) • 2007 -3.8% of British workers reported being bullied or harassed at work in the past 2 years • Grainger & Fitzner (DTI 2007) Susan Harthill

8. Costs • Individual • Organization • Society Susan Harthill

9. Stress-Related Physical Health Complications (WBI 2007) • Cardiovascular problems: hypertension, strokes, heart attacks • Adverse Neurological changes: neurotransmitter disruption, hippocampus shrinkage • Immunological impairment: more frequent infections of greater severity • Fibromyalgia, Chronic Fatigue Syndrome Susan Harthill

10. Psychological/Emotional Injuries (WBI 2007) • Debilitating Anxiety, Panic Attacks (>80%) • Clinical Depression: new to person or exacerbated condition previously controlled (39%) • Post-traumatic Stress (PTSD) from deliberate human-inflicted abuse (30% of targeted women; 21% of men) Susan Harthill

11. Economic Costs (WBI 2007) • Lost ability to be left alone to do the once-"loved job” • Forced to transfer from loved job, often a punitive transfer (13%) • Constructively discharged without reasonable cause (24%) • Target quits to reverse decline in health and sanity (40%) Susan Harthill

12. No U.S. laws currently provide recourse for targets of workplace bullying Susan Harthill

13. HWB - Florida • HB 149(Rep. Daphne Campbell) • "Safe Work Environment Act." • Covers both public and private sector • SB 308(Sen. Oscar Braynon, II) • “Abusive Workplace Environment Act.“ • Protects only public employees • state agencies, counties, municipalities, political subdivision, school district, community college or state university Susan Harthill

14. FL HB 149: Findings/purpose • Section 2(c): Workplace bullying and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder. Susan Harthill

15. OSHA The OSH Act, OSH Administration and NIOSH

16. OSHA - Purposes • OSHA § 1: • “To assure safe and healthful working conditions for working men and women … by providing for research, information, education, and training in the field of occupational safety and health . . .” Susan Harthill

17. OSHA – Findings • OSHA § 2(a): • “[P]ersonal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.” Susan Harthill

18. OSHA § 5(a)(1) – the general duty clause • Each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harmto his employees Susan Harthill

19. OSHA § 5(a)(2) – the compliance clause • Each employer . . . shall comply with occupational safety and health standards promulgated under this Act. Susan Harthill

20. OSHA – shortcomings? • OSH Act = is it a “toothless tiger” or an “onerous ogre” (David Weil)? • Physical harm required under general duty clause • Enforcement – no private cause of action • Penalties - limited Susan Harthill

21. OHSA – potential? • New Governance principles – the third way: • Role of the OSH Administration • Role of NIOSH • Focus on: • Costs of workplace bullying • Purposes of OHSA • Comparative law Susan Harthill

22. Comparative Law – A Risky Undertaking • Pitfalls of comparative law generally • Differences in culture, politics, development of law • Pitfalls of comparative workplace bullying law • European dignitarian v. U.S. discrimination models of harassment law • But what about an “OSH” model? Susan Harthill

23. Comparative Perspective • ILO • Studies focus on violence (DiMartino 1998/2000) • Approaches (Einarsen & Hoel): • Use existing law or torts, non-OSH • UK • New laws • France • Amend OSH laws • Finland, Norway, Sweden, Australia, Canada Susan Harthill

24. Sweden • Widely recognized as the leading country on workplace bullying • Part of the OSH law • Shortcomings recently identified by Einarsen & Hoel • Comparable to shortcomings of the US OSHA regulatory apparatus Susan Harthill

25. Norway • 2001 Inclusive Workplace Agreement • Focusing responsibility on the workplace for reducing the flow of workers into disability benefits, focusing on reducing sickness absence • 2004 anti-bullying campaign was part of this IW-Agreement Susan Harthill

26. Canada • Federal efforts • Saskatchewan • Ontario • (Quebec) Susan Harthill

27. Australia • State OSH laws include mental health/injury • Some states appear to be specifically addressing the issue. Examples: • Victoria - Proposed Code of Practice for the Prevention of Bullying and Violence in the Workplace • Queensland - Workplace Bullying Taskforce, Workplace Bullying: Issues Paper (2001) Susan Harthill

28. U.K. – a hybrid approach • Existing legislation • Protection from Harassment Act • Existing torts/common law principles • vicarious liability for violations of PHA • Health and Safety laws/regulations and HSE management standards • Focus on STRESS v. bullying • Self-regulation and partnerships Susan Harthill

29. Lessons for U.S. • The distinction between the European “dignitarian” model v. U.S. “discrimination” model of harassment laws is not a complete picture • The “OSH” model must be taken into account when comparing U.S. and other countries • But must also apply new governance principles Susan Harthill

30. The OSH model may have a place in the U.S. development of workplace bullying law • Awareness is a worthy goal • Organizational problem v. individual problem • But, OSH law should be an integral part of a holistic approach Susan Harthill

31. DISCUSSION