Workplace Bullying, White Paper in Support of HB 3015, by Taylor Downs

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WHITE PAPER

In Support of House Bill 3015This bill creates a new cause of action to deter workplace bullying. This bill will make it anunlawful employment practice to subject an employee to an abusive work environment that

exists when the defendant, acting with malice, subjects an employee to abusive conduct so severethat it causes tangible harm to the employee.

Drafted by:

Taylor B. [email protected]

304-268-0201



TABLE OF CONTENTS

I. STATEMENT OF PURPOSE AND EXECUTIVE SUMMARY .......................................3

II. A BRIEF OVERVIEW OF REMEDIES FOR WORKPLACE HARASSMENT INWEST VIRGINIA. ..............................................................................................................5

III. AMENDING THE WEST VIRGINIA CODE TO CREATE A CAUSE OF ACTIONFOR WORKPLACE BULLYING ......................................................................................6

A. Overview of the proposed article ....................................................................................6

B. Policy arguments ...........................................................................................................8

i. Effects of the exposure to workplace bullying .......................................................8

ii. The public desire for legislation ...........................................................................8

iii. Response to opposition ......................................................................................10

iv. Fiscal impact .........................................................................................................10

IV. CONCLUSION.................................................................................................................11

V. APPENDICES

C. Data Graphs ..................................................................................................................12

D. Legislative Map...........................................................................................................15

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I. STATEMENT OF PURPOSE AND EXECUTIVE SUMMARY

Unemployment in the United States is at record highs. Nationally, the unemployment

rate is 9.6%, while the unemployment rate in West Virginia is 9.2%.

1

With record

unemployment, Americans and West Virginians are making every effort to keep their jobs.

However, this is not always easy or possible.

Imagine being hired at a job with a good salary after being unemployed for the past year.

The worry of paying for food and keeping your house have finally been relaxed as a steady

income starts to flow through your household. After being on the job for several weeks, your

supervisor starts criticizing your work. At first, you feel that you are simply doing a poor job.

After some time, however, the supervisor’s critical nature moves beyond your work and into

your personal attitude and attributes. This persists for months, yet you continue to subject

yourself to the humiliation by your supervisor so that you are able to bring home a paycheck to

support your family. As the harassment continues, your productivity declines and your mental

state deteriorates. The co-workers around you begin to lack productivity as well, a side effect

from seeing you being dragged to new lows. Finally, you are fired for lack of production or quit

because you simply cannot tolerate the bullying any longer.2

The scenario described above is an introduction to workplace bullying. Currently, there

is no concrete definition of workplace bullying. For the purpose of this white paper the

following definitions will be relied upon in describing and defining workplace bullying. The

Workplace Bullying Institute has defined workplace bullying as, “the repeated, malicious,

1 http://www.bls.gov/web/laus/lauhsthl.htm2 While this is a fictitious scenario, many in the workplace face similar situations. Often, individuals who facesimilar workplace situations are constructively discharged from their employment without any remedy to make themwhole.

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health-endangering mistreatment of one employee…by one or more employees.”3 Other

scholars have defined workplace bullying as “repeated offensive behavior [sic] through

vindictive, cruel, malicious, or humiliating attempts to undermine an individual or group of

employees.”4 Additionally, Professor Yamada, a foremost advocate of anti-bullying legislation,

defines workplace bullying as, “the intentional infliction of a hostile work environment upon an

employee by a coworker or coworkers, typically through a combination of verbal and nonverbal

behaviors.”5

While there are different definitions used by scholars, it is clear that there are two

main themes: (1) the bullying is intentional and (2) the bullying is personally and professionally

harmful.

This white paper will begin with an overview of the current codified laws in West

Virginia that address harassment and bullying. Next, this white paper will explain how adding a

new cause of action to the West Virginia Code will increase workers’ productivity and decrease

workplace harassment. Finally, this white paper will give reasons why both employees and

employers will benefit from this legislation and how the state, as a whole, can help to create a

more efficient and productive workforce.

In the current economic environment, it is imperative that our state government does

everything possible to keep workers in their jobs. This legislation will supply West Virginia

workers with safeguards against workplace bullying and harassment while creating a more

productive workforce for employers.

3 Gary Namie and Ruth Namie, The Bully at Work, 3 (rev. ed. 2003).4 Duncan Chappel & Vittorio Di Martino, Violence at Work 20 (3d ed. 2000).5David C. Yamada, The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment Protection, 88 Geo. L. J. 475, 481 (2000).

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II. A BRIEF OVERVIEW OF REMEDIES FOR WORKPLACE HARASSMENT

IN WEST VIRGINIA.

As a general rule, employment in West Virginia is considered at-will; meaning an

employee can be fired from his or her job for good reason, bad reason, or no reason at all.6

There are several exceptions to this rule stemming from case law and statutory law. 7

One of the more commonly used exceptions to the at-will employment doctrine in West Virginia

comes from the West Virginia Human Rights Act.8

Under the West Virginia Human Rights Act,

it is illegal for an employer to discriminate against an individual based upon the individual’s

race, religion, color, national origin, ancestry, sex, age, blindness or disability.

9

The West

Virginia Human Rights Act has many parallels with Title VII in the Federal Code. 10

While the West Virginia Human Rights Act is a very positive Act for employees, it limits

protections to members of specific classes of individuals. Unless one is a member of a specific

class as defined in the Act, and is able to prove that harassment or discrimination occurred

because one is a member of a specific class, an individual has no recourse with the law regarding

harassment. Moreover, after reviewing the other exceptions to the at-will doctrine, it can be

concluded that there is no statutory recourse for an employee who is being bullied at work.

However, many states have recognized that workplace bullying is a serious issue and have

started the process of granting relief to employees who have been constructively discharged or

fired because of workplace bullying. 11

6 Williamson v. Sharvest Management Company, 415 S.E.2d 271 (W.Va. 1992).7 For an excellent summary of employment law in West Virginia, see “Labor and Employment Law,” West VirginiaState Bar Handbook; accessed at http://www.natlawreview.com/article/labor-and-employment-law-west-virginia-state-bar-practice-handbook.8 WV Code § 5-11-1 et. al. (2009).9 WV Code § 5-11-9 (2009).10 Title VII provides that it is illegal to discriminate against an individual based upon their age, race, religion, color,national origin, ancestry, sex, or disability. 11 See Appendix D.

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III. AMENDING THE WEST VIRGINIA CODE TO CREATE A CAUSE OF

ACTION FOR WORKPLACE BULLYING.

House Bill 3015 creates a new article in the West Virginia Code. This article

amends the West Virginia Code to add section 21-3E-1, et al. This new article creates a cause of

action for employees who have been bullied at work; allowing a bullied employee to bring a

lawsuit against their bully. The addition of this cause of action to the West Virginia Code will

deter bullying in the workplace.

A. Overview of the proposed article

House Bill 3015 provides definitions to help employers recognize workplace harassment

and provides a remedy for employees who have been bullied by co-workers or supervisors. The

bill defines an “abusive work environment” in §21-3E-3 as “an environment that exists when the

defendant subjects an employee to abusive conduct so severe that it causes tangible harm to the

employee.” Additionally, the bill defines “abusive conduct” and “tangible harm” so that

employers will have a clear picture of what constitutes workplace bullying.12 Further, the

legislation defines what establishes a constructive discharge under the bill and what an adverse

employment action is under the bill.13

The legislation is designed to ensure that one instance of

teasing or a snide remark does not constitute an abusive workplace environment.

Under the Act, it shall be an unlawful employment practice:

12 Under this legislation, “abusive conduct” is defined as including acts, omissions, or both, that a reasonable person

would find hostile, based on the severity, nature, and frequency of the defendant’s conduct. Further, “tangibleharm” is defined as psychological harm or physical harm.13 An adverse employment action is defined under this legislation as an action that includes, but is not limited to, a

termination, demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction incompensation.

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(a)…to subject an employee to an abusive work environment as defined by this act…and(b)…to retaliate in any manner against an employee who has opposed any unlawfulemployment practice under this Act, or who has made a charge, testified, assisted, orparticipated in any manner in an investigation or proceeding under this Act, including,but not limited to, internal complaints and proceedings, arbitration and mediation

proceedings, and legal actions.

In addition to creating a new cause of action for unlawful employment practices, the bill

grants employers and employees certain affirmative defenses. Further, the Act grants the

plaintiff relief including punitive damages, which are capped at $50,000.00, if an employer has

been found to have committed an unlawful employment practice but an adverse employment

action did not occur.

14

Moreover, the bill only provides the plaintiff with a one year statute of

limitation. Such a short statute of limitation assists attorneys with weeding out frivolous cases

and forces victims of workplace bullying to come forward in a timely manner.

Additionally, the bill grants the costs of litigation, including attorney fees, to the

complainant upon prevailing in Court. Including an attorney fees provision is crucial to the

legislation. Such a provision allows an employee to file suit without having to worry about

expensive litigation costs.15 Finally, the Act is enforced solely through a private right of action,

cutting out the need for government intervention. The private right of action stipulation ensures

that no state agency will spend valuable resources or money to enforce violations of the Act.

B. Supportive policy arguments

i. Effects of the exposure to workplace bullying

Workplace bullying can have major health effects on employees. Potential outcomes of

exposure to bullying in the workplace include physical, psychological, and behavior strains to an

14 Possible relief includes, but is not limited to: reinstatement, removal of the offending party from the complainant’swork environment, compensation for back pay, front pay, medical expenses, emotional distress, humiliation and lossof personal dignity, punitive damages, reasonable attorney fees and costs.15 Other state laws the attorney fees provision was modeled after in this Act include the West Virginia HumanRights Act and the West Virginia Wage Payment and Collection Act.

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individual.16 Exposure to bullying in the workplace is “associated with heightened levels of

anxiety, depression, burnout, frustration, helplessness, negative emotions such as anger,

resentment, and fear, difficulty concentrating, and lowered self-esteem and rumination, and

nightmares, which are consistent with Post-Traumatic Stress Disorder.”17 In addition to the

negative individual effects stated above, workplace bullying “may adversely impact group

performance by creating a ‘toxic’ work climate in which negative emotions such as fear, distrust,

and anger predominate, and mistrust and suspicion runs rampant.”18

Moreover, it has been

determined that “negative emotional states are associated with reduced helping behavior, lower

levels of creativity, decreased willingness to initiate conversations with others, decreased

receptiveness to persuasive communications, and a predisposition to perceptions of failure.”19

Such findings demonstrate that exposing individuals or groups within the workplace to bullying

has a detrimental effect on the work place environment and keeps productivity down. These

findings indicate that bullying in the workplace has the potential to be a detriment to overall

business success by creating a work environment that is harmful to employees. The findings also

suggest that a workplace without bullying has employees with more positive emotional states,

higher levels of creativity, and higher rates of success.20

ii. The public desire for legislation

In 2010, the Workplace Bullying Institute released two comprehensive surveys

measuring the frequency of workplace bullying in the United States.21 One survey was a

several-item survey comprised of 4,210 respondents, while the other survey was a single-item16 David C. Yamada, Bullying in the Workplace: Its Impact and Management, 8 Employee Rts. & Emp. Pol’y J.335, 345 (2004).17 Id.18 Id.19 Id.20 Id.21 Worplace Bullying Inst., U.S. Workplace Bullying Survey (2010),http://www.workplacebullying.org/research/2010NatlSurvey/2010_Survey_Flyer.pdf.

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survey comprised of 2,092 respondents.22 Each survey is representative of the adult American

population and was conducted in August of 2010.23

The surveys, viewed together, demonstrate that Americans face bullying in the

workplace. The surveys found that 35 % (or approximately 53.5 million) of American workers

have been bullied; 62 % of bullies in the workplace are men, while 58% of targets are women;

women bullies in the workplace target women 80% of the time; workplace bullying is four times

more prevalent than illegal harassment; and the majority of workplace bullying is same-gender

harassment.24

Additionally, the surveys suggest that there is strong public support for legislation that

would protect employees from workplace bullies. When respondents were asked “if they

supported or opposed workplace bullying legislation to protect workers from abusive conduct,”

64% of respondents favored such legislation, while 24% opposed such legislation.25 Further, the

2010 study asked respondents to identify with a political party to determine if one political party

was more inclined to support such legislation over another political party. The survey results

determined that there is bi-partisan support for the bill, with 84% of self-identified Democrats

supporting legislation, 55% of self-identified Independents supporting legislation, and 50% of

self-identified Republicans supporting legislation.26

The results of the latest Workplace Bullying Institute surveys indicate that there is

support and desire for legislation that will deter workplace bullying. Moreover, the surveys

demonstrate that there is a need for such legislation. Heeding these results, as well as results

22 Id. The several item survey has a margin of error of +/- 1.5 percentage points, while the single item survey has amargin of error of +/- 2.2 percentage points.23 Worplace Bullying Inst., U.S. Workplace Bullying Survey (2010),http://www.workplacebullying.org/research/2010NatlSurvey/2010_Survey_Flyer.pdf 24 Id.25 Id.26 Id. 60% of survey respondents did not specify a political party. For a complete breakdown of the survey, seeAppendix C.

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from a prior survey conducted by the Workplace Bullying Institute in 2007, 17 state legislatures

have introduced legislation to deter workplace bullying.27

iii. Response to opposition

The United States Chamber of Commerce has attempted to brand efforts to pass anti-

bullying legislation as job killing legislation without offering any proof as to how such

legislation would kill jobs. Instead, the legislation would be beneficial to employers on many

levels. The legislation gives employers a reason to terminate problem employees who bully,

precisely defines what an abusive work environment is, causing a very high standard to be met,

requires plaintiffs to use private attorneys, and gives employers affirmative defenses when

certain internal correction mechanisms are in effect. Moreover, the legislation requires proof of

serious health hazards or a pattern of negative employment decisions against the effected

individual in order to bring a successful suit.

Another argument against such proposed legislation is that existing company policies are

adequate to address workplace bullying. While many businesses make this argument, the survey

results cited above indicate that millions of Americans continue to be bullied at work. If existing

workplace policies were enough to thwart workplace bullying, 53.5 million Americans would not

report to be victims of workplace bullying.

iv. Fiscal impact

The fiscal impact of this bill is uncertain at this time. However, it is likely that the fiscal

impact on the state will be minimal. The legislation is enforceable only by a private cause of

action, meaning that there are no state agencies required to enforce any of the provisions of the

legislation.

27 For a complete list of states that have introduced legislation, see appendix D. 10



The argument could be made that such legislation could cost private employers through

litigation. However, with the strict standards needed to meet the statutory definition of abusive

work environment, it is likely that attorneys will only litigate cases that meet the statutory

definition. This means that a plaintiff must prove a very high standard in order to bring litigation

against an employer or co-worker, deterring frivolous lawsuits.

IV. CONCLUSION

With unemployment at historical highs and a sluggish economy continuing into the

future, workers, now more than ever, deserve as much job security as possible. In an

environment where a good-paying, secure job is difficult to find, an employee should not have to

worry about losing that job because of workplace harassment and bullying. This bill creates a

stop-gap for employees and provides for remedies should an employee end up in a hostile work

environment caused by workplace bullying.

Additionally, once implemented, employers will reap benefits from this bill in the form

of happier, more productive employees; causing higher profits and better bottom lines for

companies. Moreover, the bill gives employers a way to terminate problem employees. The

implementation of this bill is critical to improving the lives of working people while ensuring

that the workforce remains happy and productive.

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Workplace Bullying 2010 Data28

26%

9%

50%

15%

Prevalence of Bullying in the workplace

Been Bullied

Current

No experience

Witnessed

Figure 1

62%

38%

Prevalence of Workplace Bullying by Gender

Male

Female

Figure 2

28http://www.workplacebullying.org/research/2010NatlSurvey/2010_Survey_Flyer.pdf, Accessed 10 October, 2010.

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64%

12%

24%

Public Support for Healthy Workplace Legislation

Support

No Opinion

Oppose

Figure 3 Public Support for a Healthy Workplace Bill by Race

0

10

20

30

40

50

60

70

80

Support No Opinion Oppose

White

Hispanic

African American

Asian

Figure 4

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Support for a Healthy Workplace Bill by Political Affiliation

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

Support No Opinion Oppose

Democrat

Independent

Republican

Not Specified

Figure 5

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APPENDIX D

His estory of Legislation in the United Stat

Dark blue indicates current legislation

State History of legislation

Light blue indicates prior legislation

07 & 2005

2007

007

5

California: 2003

, 2008 & 2007Connecticut: 2009

Hawaii: 2007, 2006, 2005 & 2004

Illinois: 2010, 2009

Kansas: 2009, 2006

Massachusetts: 2009, 20

Missouri: 2006

2007Montana: 2009 &

Nevada: 200910, 2009 &New Jersey: 20

New York: 2009, 2008, 2007 & 2006

Oklahoma: 2009, 2007 & 2004

Oregon: 2007 & 2005

Utah: 2009

09, 2008 & 2Vermont: 20

Washington: 2008, 2007 & 200Wisconsin: 2010

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Documents

Workplace Bullying, White Paper in Support of HB 3015, by Taylor Downs