Mobbing-U.S.A.
Emotional Abuse in the American Workplace
Legal Resources
What's below:
A: Bills, Labor Standards and Policies
- Bill 70 -- 2001 Legislative Assembly of Ontario
- CALIFORNIA LEGISLATURE—2003–04 REGULAR SESSION ASSEMBLY BILL No. 1582
- Columbia: Anti-harassment Legislation, February 2006
- 2004 Labor Standard, Quebec, Canada
- State of Oregon, Department of Environmental Quality ANTI-MOBBING POLICY no. 50.110
- Pleasant Valley, CA School District Policy
- a.) 1/24/07 San Francisco City Council - Resolution on Anti-bullying The San Francisco County/City Board of Supervisors
b.) See and hear targets of mobbing testify.
B: Articles
- MOBBING, an article by Susan Rae Sampson
- "The Phenomenon of Workplace Bullying and the Need for Staus-Blind Hostile Work Environment Protection,"
C: Addresses of Attorneys
Bills, Labor Standards and Policies
1.) Bill 70 -- 2001 Legislative Assembly of Ontario
An Act to amend the Occupational Health and Safety Act with respect to acts of workplace violence, see: http://www.ontla.on.ca/documents/Bills/37_
Parliament/Session2/index-01.htm#P508_42292 The following definition of workplace violence is used in this bill: "Workplace violence" means acts of violence that persons commit in a workplace and includes acts of physical or psychological violence, including bullying, mobbing, teasing, ridicule and any other acts or use of words that can reasonably be interpreted as designed to hurt or isolate a person in the workplace.
2.) A bill was introduced on February 21, 2003 in the California Legislature regarding Abusive Work Environments. To download the complete file in PDF format, see: www.mytoxicboss.com/ab1582.pdf.
CALIFORNIA LEGISLATURE—2003–04 REGULAR SESSION
ASSEMBLY BILL No. 1582
Introduced by Assembly Member Koretz
(Coauthor: Assembly Member Negrete McLeod)
February 21, 2003
An act to add Part 12 (commencing with Section 9200) to Division 5 of the Labor Code, relating to employment.LEGISLATIVE COUNSEL’S DIGEST
AB 1582, as introduced, Koretz. Abusive work environments. Existing law makes it an unlawful employment practice for an employer, including any person acting directly or indirectly as an agent of the employer, to harass any employee because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
This bill would make it an unlawful employment practice to subject an employee to an abusive work environment, as defined, and would specify that an employer, as defined, is vicariously liable for a violation committed by its employee, but would prescribe certain affirmative defenses. The bill would also make it an unlawful employment practice to retaliate against an employee because the employee has opposed an unlawful employment practice under the bill or has made a charge, testified, assisted, or participated in an investigation or proceeding under the bill. The bill would specify that it is enforceable solely by a private right of action, would authorize injunctive relief and would limit an employer’s liability for emotional distress to $25,000 where the unlawful employment practice does not result in a negative employment decision, as defined. The bill would provide that an aggrieved employee may elect to seek compensation under the bill or the employee’s workers’ compensation remedy, but may not accept workers’ compensation and bring an action under the bill for the same underlying behavior.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.The people of the State of California do enact as follows:SECTION 1. (a) The Legislature finds and declares all of the
following:
(1) The social and economic well-being of the state is dependent upon healthy and productive employees.
(2) Surveys and studies have documented that between 16 percent and 21 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and that this behavior is three times more prevalent than sexual harassment alone.
(3) Surveys and studies have documented that abusive work environments can have serious effects on targeted employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, post-traumatic stress disorder, reduced immunity to infection, stress-related gastrointestinal disorders, hypertension, and pathophysiological changes that increase the risk of cardiovascular diseases.
(4) Surveys and studies have documented that abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and significant increases in medical and workers’ compensation claims.
(5) Unless mistreated employees have been subjected to abusive treatment at work on the basis of race, color, sex, national origin, or age, they are unlikely to have legal recourse to redress such treatment.
(6) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status, such as is provided under employment discrimination statutes.
(7) Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or provide adequate redress to employees who have been harmed by abusive work environments.
(b) It is therefore the intent of the Legislature in enacting this
act:
(1) To provide legal redress for employees who have been harmed psychologically, physically, or economically by being deliberately subjected to abusive work environments.
(2) To provide a legal incentive for employers to prevent and respond to mistreatment of employees at work.
SEC. 2. Part 12 (commencing with Section 9200) is added toDivision 5 of the Labor Code, to read:PART 12. ABUSIVE WORK ENVIRONMENTS9200. As used in this part, the following terms have the following meanings:
(a) ‘‘Abusive conduct’’ is conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. In considering whether abusive conduct is present, a trier of fact should weigh the severity, nature, and frequency of the conduct. Abusive conduct may include, but is not limited to, 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 a person’s work performance. A single act normally will not constitute abusive conduct, unless especially severe and egregious.
(b) ‘‘Abusive work environment’’ is a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee.
(c) ‘‘Conduct’’ is all forms of behavior, including acts and omissions of acts.
(d) ‘‘Constructive discharge’’ is (1) abusive conduct, (2) which causes the employee to resign, and (3) where, prior to resigning, the employee brings to the employer’s attention the existence of the abusive conduct, and (4) the employer fails to take reasonable steps to eliminate the abusive conduct.
(e) ‘‘Employee’’ is an individual employed by an employer, whereby the individual’s labor is either controlled by the employer or the individual is economically dependent upon the employer in return for labor rendered.
(f) ‘‘Employer’’ includes all individuals and private corporations, partnerships, associations, and unincorporated organizations that compensate individuals in return for performing labor. ‘‘Employer’’ also includes the state or any subdivision thereof, any county, city, city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, political subdivision, the California State University and the University of California.
(g) ‘‘Malice’’ is the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification. Malice may be inferred from the presence of one or more factors such as outward expressions of hostility, harmful conduct inconsistent with an employer’s legitimate business interests, a continuation of harmful, illegitimate conduct after the complainant requests that it cease or demonstrates outward signs of emotional or physical distress in the face of the conduct, or attempts to exploit the complainant’s known psychological or physical vulnerability.
(h) ‘‘Negative employment decision’’ is a termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, or disciplinary action.
(i) ‘‘Physical harm’’ is the material impairment of a person’s physical health or bodily integrity, as documented by a competent physician or supported by competent expert evidence at trial.
(j) ‘‘Psychological harm’’ is the material impairment of a person’s mental health, as documented by a competent psychologist, psychiatrist, or psychotherapist, or supported by competent expert evidence at trial.
9201. It is an unlawful employment practice under this part to subject an employee to an abusive work environment.
9202. An employer is vicariously liable for an unlawful employment practice in violation of this part committed by its employee.
9203. It is an affirmative defense to an action for an abusive work environment that the employer exercised reasonable care to prevent and promptly correct the abusive conduct and the aggrieved employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer. This defense is not available when abusive conduct culminates in a negative employment decision.
9204. It is an affirmative defense to an action for an abusive work environment that the complaint is grounded primarily upon a negative employment decision made consistent with an employer’s legitimate business interests, such as a termination or demotion based on an employee’s poor performance, or the complaint is grounded primarily upon an employer’s reasonable investigation of potentially illegal or unethical activity.
9205. It is an unlawful employment practice under this part to retaliate in any manner against an employee because he or she has opposed any unlawful employment practice under this part or because he or she has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including, but not limited to, internal proceedings, arbitration or mediation proceedings, and legal actions.
9206. Where a defendant has been found to have committed an unlawful employment practice under this part, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate, including, but not limited to, reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorney’s fees.
9207. Where an employer has been found to have committed an unlawful employment practice under this part that did not result in a negative employment decision, the employer’s liability for damages for emotional distress may not exceed twenty-five thousand dollars ($25,000) and the employer may not be liable for punitive damages. This section does not apply to individually named co-employee defendants.
9208. This part may be enforced solely by a private right of action.
9209. An action commenced under this part may be commenced no later than one year after the last act that comprises the alleged unlawful employment practice.
9210. Nothing in this part may be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any other law of this state.
9211. The remedies in this part are in addition to remedies under the workers’ compensation laws. However, a person who believes that he or she has been subjected to an unlawful employment practice under this part may elect to accept workers’compensation benefits in connection with the underlying behavior in lieu of bringing an action under this part. A person who elects to accept workers’ compensation may not bring an action under this part for the same underlying behavior.
3.) ACTA DE CONCILIACON AL PROYECTO DE LEY NUMERO 236 DE 2005 SENADO, 88 DE 2004 CAMARA por medio de la qual se adoptan medidas para prevenir, corregir a sancionar el acoso laboral y otros hostigiamentos en el marco de las relaciones de trabajo.
4.) http://www.cnt.gouv.qc.ca/en/
harcelement/harcelement.htm
This sites informs about a labor standard that entered into force on June 1, 2004 in the Province of Quebec, Canada, regarding psychological harassment at work.
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5.) State of Oregon, Department of Environmental Quality ANTI-MOBBING POLICY no. 50.110
Policies and procedures effective date: September 19, 2002INTENT:This policy will help ensure that DEQ employees are provided a safe, respectful work environment, free of intimidation, hostility, harassment and other mobbing behaviors.AUTHORITY:DEQ Policy 50.010; State Policy 50.010.01DEFINITIONS:Workplace mobbing is a form of harassment that is not based on an individual's protected class status (i.e. gender, race, sexual orientation, religion, age, disability, national origin, etc.), and is perpetrated by any employee against another employee. Mobbing is intentional verbal or non-verbal conduct by one or more individuals against another individual over a period of time, that continuously and systematically:
- Intimidates, shows hostility, threatens, offends, humiliates, or insults any co-worker; or Interferes with a co-worker's performance; or Has an adverse impact on a co-worker's mental or physical well-being; or
- Otherwise adversely affects a co-worker.
For purposes of this policy, a “targeted worker” refers to the victim of alleged mobbing behaviors; “perpetrator(s)” refers to the employee(s) who is/are allegedly performing the mobbing behaviors.Mobbing can occur in various ways:
- Among co-workers, Among co-workers and one or more managers targeting another co-worker, Manager or group of managers targeting a co-worker, except that this definition does not include a manager’s good faith efforts in counseling, coaching and/or disciplining an employee for valid, documented substandard work performance or other work related issues; or
- Co-worker(s) targeting a manager.
POLICY:DEQ is committed to providing a safe, respectful work environment for all employees, free from mobbing behaviors. All DEQ employees are expected to adhere to acceptable conduct at all times. This includes respecting the rights and feelings of others and refraining from any behavior that might be harmful to co-workers.Mobbing behaviors are violations of DEQ’s Health and Safety Policy and DEQ's Workplace Violence Policy.Prohibited mobbing behaviors include, but are not limited to:
- Threatening, intimidating or hostile acts directed at a co-worker; Generally abrasive behavior; Using obscene, abusive or threatening language or gestures; Discrediting a co-worker; Slander; Withholding information vital to the co-worker's job performance; Acts of physical or emotional isolation. Prohibiting due process; Retribution for pursuing due process;
- Verbal or physical behavior which is derogatory, abusive, bullying, threatening or disrespectful.
Mobbing will be evaluated based on what a reasonable person would judge to be unacceptable behavior under similar conditions or situation. Mobbing is persistent and systematic harassment and does not include isolated incidents or appropriate corrective measures which may be covered in other policies. For example, a single use of an offensive comment is unacceptable and may be a violation of the harassment-free workplace policy, but a single offensive comment is not mobbing. Likewise, while warranted discipline or a justified poor performance review may have an adverse impact on a worker’s mental well-being, such corrective actions by themselves are not mobbing.RESPONSIBILITIES:DEQ will take reasonable steps to provide a workplace environment that is free of intimidation, hostility, harassment and other workplace mobbing behaviors. DEQ will take immediate and appropriate action when mobbing behaviors occur in violation of this policy. Such actions may include but are not limited to, at DEQ’s discretion, separating a targeted worker from the perpetrator(s), appropriate disciplinary action, reassignment, and/or mediation by a mutually agreed upon mediator.When one or more represented employees are involved, and DEQ determines that mediation is appropriate, both DEQ management and the AFSCME Local 3336 Executive Board, will select a mediator from a list of qualified mediators. The cost of the mediator will be shared by AFSCME Local 3336 and DEQ when both management and represented employees are involved in the mediation. If the mediation is between represented co-workers, payment will be discussed between AFSCME Local 3336 and DEQ.DEQ prohibits mobbing. Any violation of DEQ’s anti-mobbing policy should be reported immediately to either a manager, a Division Administrator, Human Resources, or an AFSCME Local 3336 Union Steward. The report should be in writing with a statement of facts. The person receiving the report shall immediately forward the report to Human Resources. Human Resources will ensure that all reports of policy violations are promptly and appropriately investigated. Any investigation shall include unbiased interviews with the alleged perpetrator(s) and target(s). If the result of the investigation indicates that corrective action is called for, such action may include disciplinary action up to and including dismissal of the perpetrator(s). This does not preclude the requirement that management follow applicable state policy regarding disciplinary actions or that the union provide fair representation to represented employees.DEQ prohibits any form of retaliation against an employee filing a good faith complaint under this policy or for assisting in a complaint investigation. If retaliation occurs, it may result in disciplinary action up to and including dismissal of the offender(s).
6.) Pleasant Valley School District in California adopted the following new language on May 1, 2002 to their personell policy regarding discipline:Article XVI, Section B.5
Discourteous and/or unprofessional treatment of the public, students or of fellow employees. Discourteous treatment shall include, but not be limited to: intimidation, showing hostility, threats, humiliation of, insults, or slander.
7.) 1/24/07 San Francisco City Council - Resolution on Anti-bullying The San Francisco County/City Board of Supervisors
Resolution requesting the Department of Human Resources recognize the detrimental impact of mobbing (aka workplace bullying) on creating a safe and productive workplace for all employees was adopted:
WHEREAS, Mobbing, a common form of workplace harassment where one group of employees psychologically harasses or bullies another colleague, directly impacts not only the emotional well-being of those targeted, but also the productivity of the entire workforce; and
WHEREAS, Over the past two decades social scientists have documented the workplace phenomenon and its effects on both employees and employers; and
WHEREAS, This psychological harassment can be manifested in the form of verbal comments, constant criticism, isolation and withholding information among many other harassing behaviors; and,
WHEREAS, Mobbing often targets employees whose excellent job performance distinguishes them from colleagues; and
WHEREAS, Workplace harassment has a tangible effect on the emotional well-being, job performance and physical health of those targeted; and
WHEREAS, Though every incident of mobbing differs, they often follow a predictable pattern that begins with increased intimidation and isolation and climaxes with a claim by a group of colleagues that the victim has committed an offense that requires immediate adjudication; and
WHEREAS, Regardless of the outcome of any investigation into the alleged offenses, targets of mobbing often voluntarily resign due to an increase in work related anxiety; and
WHEREAS, An estimate two to five percent of employees will become victims of mobbing at some point during their careers; and
WHEREAS, It has been demonstrated that those people who have been targeted by this form of emotional abuse commit suicide at a higher rate; and
WHEREAS, The increased rates of absenteeism, decreased productivity, along with the added health care and legal costs that result from workplace harassment represent the true cost of these harassing techniques to employers; and
WHEREAS, All forms of workplace harassment are against the employment policies of the City and County of San Francisco; now, therefore be it
RESOLVED, That the Board of Supervisors of the City and County of San Francisco condemns this abusive workplace behavior; and, be it
FURTHER RESOLVED, that the Board of Supervisors of the City and County requests the Department of Human Resources to report back to the Board of Supervisors within 60 days how, if at all, it can include mobbing, and all forms of psychological harassment, in their policies covering workforce harassment.
You can see and hear targets of mobbing testify here
Articles
1.) MOBBING by Susan Rae Sampson (Susan Rae Sampson, WSTLA EAGLE member is with Sampson & Wilson, Inc., P.S., in Renton, Washington. Ms. Samspon is a Ninth Congressional District Representative on the WSTLA Board of Governors.) Every employment lawyer has heard the complaint, "They brought in a new manager and he is trying to get rid of me. I have never been written up for anything! My sales statistics are as good as anybody else's, but all of a sudden I can't do anything right. I went to Human Resources, and they just acted like I'd done something wrong, and put me on this schedule for weekly meetings with my supervisor. I used to love my job, but I can hardly stand going there any more. My doctor gave me a prescription for Paxil..." And every employment lawyer has had to reply, one time or another, "You are an employee at will. They can let you go for any reason, or no reason at all, except for the illegal reasons, and none of the illegal reasons seem to apply in your case: you have no contract, no collective bargaining agreement. You aren't a whistleblower who has gone to the government with complaints of illegal activity, and you haven't complained to L&I about an injury, or about safety or wage and hour issues. Nothing suggests that you are the victim of discrimination on the basis of age over 40, race, sex, ancestry, creed, marital status, or disability. There is nothing I can do to help."
"But this is a hostile working environment!" And so it is, but it isn't necessarily against the law. To management, it is "progressive discipline": every act of the employee that could possibly be treated as malfeasance, misfeasance or nonfeasance is documented and treated as cumulative. To the employee, it is unfair, demoralizing and counterproductive, but except for "hostile working environment," employees have not had a single word like "discrimination" to express the concept. Now several writers have put a name on the concept, and have called it "mobbing." The lead commentator was Dr. Heinz Leymann, who conducted extensive studies in Scandinavia and who published studies descriptive of the "mobbing" process. In the United States, Dr. Noa Zanolli Davenport and two colleagues, have published "Mobbing, Emotional Abuse in the American Workplace," copyright 1999, Civil Publishing Society, Ames, Iowa. Dr. Davenport has become an expert witness in the identification of "mobbing." And Dr.Kenneth Westhues, a Canadian professor, was astonished to find himself in a role that had changed from "mobber" to "mobbee." He recounts his experiences from home, where he sits on paid administrative leave while the relevant committees run through their processes of firing him. He tells it all, with humor, in "Eliminating Professors, A Guide to the Dismissal Process," copyright 1998 Kempner Collegium Publications, Queenston, Ontario. His prototypical professor who is being eliminated is Dr. "PITA," the "Pain in the Ass," who has become the victim of his employer's efforts to justify the termination of his employment. Until "mobbing" is against the law, legal help for its victims remains somewhat collateral, off point-unions may assist, discrimination laws may have limited applicability-but some institutions are beginning to recognize and address "mobbing." In Europe, the Swedish National board of Occupational Safety and Health has published a booklet on creating a psychologically safe environment. In the U.S., such corporations as Levi Strauss and Saturn have implemented programs for assessing the risks of mobbing, of expressing mission statements intended to reduce incidents of mobbing, and of behaving proactively to avoid the circumstances allowing mobbing to arise. Perhaps some of these statements will become enforceable promises to the employee, but until then, the employment lawyer may be constrained to saying "I understand; you aren't alone, and here are some books to read about what's going on; but it still isn't against the law."
2.) "The Phenomenon of Workplace Bullying and the Need for Staus-Blind Hostile Work Environment Protection," by David Yamada. The Georgetown Law Journal, Vol.88, Number 3, March 2000, pp.475-536.
Attorneys
Attorneys who know our book and are willing to have an initial consultation and may then make another referal are:
Susan Rae Sampson
Sampson & Wilson
1400 Talbot Road South, Ste. 400
Renton, Washington 98055-4282
Tel. 253-863-4363
e-mail: ssampson@sampsonwilson.com
Mark Sherinian
Attorney at Law
320 Edgewater Building
4200 West Des Moines, IA 50266
Tel. 515-224-2079
Fax 515-224-2321
e-mail: sherinianlaw@msn.com
Scott Peters
Attorney at Law
Peters Law Firm
233 Pearl Street
Council Bluffs, IA 51502-1078
Tel. 712-328-3157
Fax 712-328-9092
speters_law@hotmail.com
Reginald Bussey, Esq.
Bussey Law
719 Griswold, Suite 820
Detroit, Michigan 48226
Tel. 313-967-7879
Fax 313-927-8235
e-mail: busseylaw@sbcglobal.net
www.busseylaw.com
