Workplace Violence and Bullying NOVEMBER 1, 2016
MARC A. FISHEL Partner
[email protected]
BENJAMIN S. ALBRECHT Partner
[email protected] ATTORNEYS AT LAW
LEADERS IN EMPLOYMENT LAW AND BEYOND
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Fishel Hass Kim Albrecht Downey LLP | 400 S. Fifth Street, Suite 200 Columbus, Ohio 43215 | P (614) 221-1216 | F (614) 221-8769 This material is intended solely for informational and presentation purposes only and in no way should be construed as offering or providing legal advice.
Workplace Violence and Bullying November 2016
TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................. 1 II. WORKPLACE BULLYING AND NONVIOLENT ABUSE ........................................ 1 A. Bullying. ........................................................................................................................... 1 B. Why Employers Must Address This Issue. ...................................................................... 2 C. Four-Step Process All Employers Should Engage In....................................................... 3 D. Dealing With Bullies After/During the Fact. ................................................................... 4 E. Special Considerations for Supervisors Bullied by Subordinates. ................................... 5 F. Using Social Media to Bully. ........................................................................................... 6 G. The Relationship Between Workplace Violence and Bullying. ....................................... 7 III. WHAT IS WORKPLACE VIOLENCE? ........................................................................ 8 A. Defining Workplace Violence. ......................................................................................... 8 IV. WHY DOES WORKPLACE VIOLENCE OCCUR? .................................................... 9 A. Why Does Workplace Violence Occur? .......................................................................... 9 B. Be Aware of Environments That Increase Chances of Being a Victim. .......................... 9 C. Domestic Violence. ........................................................................................................ 10 V. KNOW THE EMPLOYER’S WORKPLACE VIOLENCE POLICIES, PLANS & RESOURCES: ............................................................................................................................. 10 A. Safe Workplace. ............................................................................................................. 10 B. Workplace Violence Policy. ........................................................................................... 10 C. Does Your Employer Conduct Pre-Employment Screening? ........................................ 11 D. Training. ......................................................................................................................... 12 E. Employee Assistance Programs. .................................................................................... 13 VI. HOW EMPLOYEES CAN PREPARE AND PROTECT THEMSELVES ............... 13 A. Awareness. ..................................................................................................................... 13 B. Reporting. ....................................................................................................................... 14 C. Training and Practicing the Plan. ................................................................................... 14 D. Coordinating with Local Police...................................................................................... 15 VII. CASE EXAMPLE – WORKPLACE THREAT AND POLICY IMPORTANCE .... 15
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Workplace Violence and Bullying November 2016
I.
INTRODUCTION Unfortunately in today’s society, employees face a significant risk of job-related bullying and violence. Being aware of potentially hazardous workplace situations and preparing for the unthinkable are ever necessary. The old adage “prepare for the worst, hope for the best” applies in this context. In order to prevent, prepare for, and react to such events, employees should educate themselves on recognizing and preparing for workplace violence as well as be knowledgeable of the employer’s violence prevention programs. Taking such measures helps reduce the potential of being a victim of workplace violence.
II.
WORKPLACE BULLYING AND NONVIOLENT ABUSE A.
Bullying. 1.
2.
Definition. a.
Any behavior that is repeated, systematic and directed towards an employee or group of employees that a reasonable person under the circumstances would expect to victimize, humiliate, undermine or threaten another employee and which creates a risk to health and safety.
b.
Attitude distinguished - Employers cannot discipline someone for his/her attitude, defined as “a mental position or a feeling or emotion with regard to a fact or state” (Webster’s Ninth New Collegiate Dictionary). However, attitude manifests itself in behaviors and employers can, and should, discipline for any behavior that does not meet the standards expected in the agency.
Characteristics. a.
Verbal abuse. i.
b.
Shouting, swearing, using foul language, spreading gossip, blaming the employee, threatening job loss, unwarranted criticism, putting employee down in front of others, teasing.
Non-verbal abuse. i.
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Workplace Violence and Bullying November 2016 treating employee rudely, unreasonable work demands, rolling eyes. 3.
4.
B.
Harassment vs. bullying. a.
Harassment or discrimination in the legal sense involves actions or inactions taken against an individual for legally impermissible reasons (race, color, sex, age, religion, national origin, disability status, military status).
b.
Bullying often does not occur because of a protected status, which can make it difficult to pursue legally.
Personality clashes vs. bullying. a.
Clash in perceptions, goals or values versus attempts to demean a co-worker.
b.
Does anyone stand to gain out of the interaction?
Why Employers Must Address This Issue. 1.
Bullying can lead to mobbing (group of co-workers target another coworker with the purpose of removing the co-worker from the organization or at least from within a particular department of the organization).
2.
Bullying wastes money. a.
3.
Employee productivity, employee time off, high turnover.
Litigation. a.
Can an employee sue for workplace bullying? i.
Constructive discharge; wrongful discharge; retaliation; negligent retention/hiring.
ii.
Defamation/libel; intentional infliction of emotional distress; intentional interference with employment relations; assault/battery.
b.
Statistics show that employees believe litigation is the most effective way to combat bullying in the workplace.
c.
Workers’ Compensation claims for stress are on the rise.
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4.
Unions are starting to seek language in collective bargaining agreements. a.
C.
Anti-bullying clause or mutual respect clause allowing employees to file grievances if management engages in bullying behavior.
Four-Step Process All Employers Should Engage In. 1.
Perform an honest assessment of the workplace (Do you have bullying going on?) a. b. c. d. e.
2.
Assess the type of the bullying that you have in the workplace. a. b. c. d. e.
3.
Are there workplace factors that make it more likely for bullying to occur? Conduct a survey of employees on issues of workplace bullying. Monitor patterns of absenteeism, staff turnover, grievances, etc. Monitor deterioration of workplace relationships. Utilize feedback from exit interviews.
Threats of unjustified discipline. Overloading of work. Unnecessary criticisms. Gossip. Inappropriate jokes, sarcasm, insults.
Control through policies and follow-up. a. Consider whether to have separate policy or incorporate bullying issues in your current workplace conduct policy. b.
Define abusive conduct.
c.
Establish procedures for reporting and responding to incidents of bullying, which includes multiple resources for people to report to, including someone outside the department.
d.
Require employees who are victims or who witness bullying to report promptly.
e.
Keep this policy separate from your discrimination/harassment policy.
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Workplace Violence and Bullying November 2016 4. D.
Evaluate the effectiveness of the process.
Dealing With Bullies After/During the Fact. 1.
Confront the behavior, not the person.
2.
Document, document, document.
3.
Be specific with the employee about his or her behavior. Telling an employee that he is not getting along with others is not going to give the employee much to work with.
4.
Mediation?
5.
Let bullies know their actions will not be tolerated, but the bullies themselves may have a reason for acting out that has very little to do with the victim—can you get to the root of the bullies’ issues?
6.
Follow up with the victim of bullying to let him/her know the issues is being dealt with and give him/her an opportunity to express remaining concerns.
7.
Employee Assistance Programs (EAPs) to provide victims or bullies with counseling. EAPs are designed to assist employees with personal problems that may be having a detrimental impact on their performance and behavior in the workplace. When it becomes clear that an employee is being troubled by influences inside or outside the workplace which are having a detrimental effect on their performance, the employer should offer the services of the agency’s EAP. a.
Warning signs. i. ii. iii. iv.
b.
Excessive absenteeism / tardiness. Poor performance. Seems distracted. Other erratic behavior.
Essential elements of a program. i. ii. iii.
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Individual counseling. Hotline for crisis intervention and referral to experts. Seminar topics (communications, stress management, coping with change, etc…) 4
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c.
Participation and referral to EAPs. Participation in the EAP may be either self-initiated or initiated at the request of the employer. Before making the referral to the EAP, the employer should consult with the provider to determine the proper time and method for making the referral as well as any procedural issues to be followed. When making a referral, the employer should be cognizant of the following items: i. ii. iii.
iv.
v. E.
Document the employee’s performance problems if applicable, including all verbal and written warnings. Meet with the employee to discuss performance issues. Ask the employee to explain the performance problems prior to referring them to the EAP (there may be a simple explanation for the perceived problems). Inform the employee of their status relative to the discipline process and potential results if the performance is not corrected. Stress the confidentiality of the process.
Special Considerations for Supervisors Bullied by Subordinates. 1.
Supervisors who are bullied at work by co-workers are in the unique and difficult position of having to address the bullying, while maintaining authority, without giving the impression of abusing the authority of the superior position.
2.
First, and foremost, do not say anything when you are angry and have not had time to process the conflict. Reactions should not be instantaneous because they are likely to have emotion involved that is more destructive than constructive.
3.
When it comes time to talk to the subordinate, have a plan and goal for the conversation and be prepared for the subordinate to get emotional or defensive. Let the subordinate know that while you do remain the supervisor, you would like to have a dialogue. One of the goals should be to open up the lines of communication in that meeting and in subsequent encounters with one another. Try to work out a system for working out issues in the future. If discipline is involved in the subordinate’s conduct, this conversation between the supervisor and the subordinate should be separate from the disciplinary conferences.
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Workplace Violence and Bullying November 2016 4.
F.
Keep in mind what kind of personality the bully has and what may or may not be effective in communicating with that person.
Using Social Media to Bully. 1.
Have a social media policy in place so that employees know that they can be disciplined for off-duty conduct, such as posting on their personal websites, if that conduct affects work on-duty. Caselaw: a.
Core v. Benston, et al. Case No. 2010 CV 00324. Core, an employee of the Champaign County Department of Job and Family Services, allegedly suffered from breathing issues that were aggravated when she was exposed to perfumes, specifically Japanese Cherry Blossom, and other strong scents. After allegedly experiencing an allergic reaction to her coworker, Ms. Benston’s perfume, Core asks that all of her coworkers within the DJFS not wear perfume in the workplace. Shortly after, Ms. Benston and another coworker, Ms. Faulk, posting on Facebook about wearing Japanese Cherry Blossom perfume and bringing it to work. Core claims that numerous alleged incidents then occurred in which Ms. Benston and Ms. Faulk stood in close proximity to her while wearing perfume. Core is suing her co-workers for intentional infliction of emotional distress, battery, and assault. The Facebook posts referenced above were attached to Core’s complaint filed with the Court.
b.
The State of Ohio, ODRC v. Ohio Civil Service Employees Assn, Local 11, AFSCME, Arb. David M. Pincus, March 6, 2013. A 15-year State corrections officer was terminated, despite his previously clean record, for posting a Facebook status update in response to Governor Kasich’s efforts to limit state employees’ collective bargaining rights. The post stated, “Ok we got Bin Laden… let’s go get Kasich next… who’s with me?” The predisciplinary letter stated a violation of three work rules: (1) prohibition of threatening, intimidating or coercion of another employee or member of the general public; (2) prohibition against actions that could compromise or impair the ability of an employee to effectively carry out his/her duties a public employee; and (3) prohibition of any act that would bring discredit to the employer or the Standards of Employee Conduct. The corrections officer was ultimately terminated. He filed a grievance.
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The arbitrator reinstated the corrections officer and modified the discipline to a time-served suspension without back pay (14 months). Despite the fact that four co-workers “liked” his post, the Arbitrator determined that the Facebook posting was not concerted activity, as he was not engaging in a discussion with fellow employees but, rather, was simply posting on behalf of himself. Further, the comments were not specific enough about complaints over the legislation to constitute speech over existing terms and conditions of employment. However, the Arbitrator determined that, while the comment consisted merely of “empty words,” the comment was not a mere joke, that it was uttered in a public forum (Facebook), and that it exhibited a certain job-related nexus. His Facebook profile designated his job location and public employee status. As such, the comment was not shielded from disciplinary consequences. G.
The Relationship Between Workplace Violence and Bullying. 1.
When does bullying become more than bullying?
2.
Pre-employment screening — Employers who conduct thorough preemployment screening by utilizing criminal background checks, reference checks and other community resources can greatly improve productivity and reduce the probability of violence in the workplace.
3.
Identifying the risk factors – “Red Flags.” Although no single factor can necessarily predict whether an employee will turn violent, some possible indicators for “increased propensity” for violence are listed below as well as events which could possibly “trigger” a violent outburst. a.
Risk factors. i. ii. iii. iv. v. vi. vii.
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History of poor interpersonal relationships. Previous history of violence. Access to weapons. Loner with few friends. Paranoid, aggressive behavior. Emotional problems, such as substance abuse or mood swings. Obsessive behavior of some kind (weapons, romantic, political, etc…)
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Workplace Violence and Bullying November 2016 viii. ix. x. xi.
b.
Intimidating behavior towards others, including ongoing or unresolved arguments with co-workers. Performance problems, such as carelessness at work, accidents, poor, etc. A person who is quick to take offense. Change in behavior, such as deterioration in appearance of hygiene, becoming reclusive.
Triggering events. i. ii. iii. iv. v.
Being laid off or terminated. Disciplinary actions. Bank or court actions. Marital conflicts. Arguments with co-workers.
While none of the factors listed above are definite predictors of violent acts, supervisors can use the lists above to look for potentially volatile situations which may develop into violent situations. 4. III.
Utilize EAPs.
WHAT IS WORKPLACE VIOLENCE? A.
Defining Workplace Violence. 1.
The Occupational Safety and Health Administration (OSHA) defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.” a.
2.
This includes the following: beatings, stabbing, shootings, suicides, near-suicides, rapes, psychological traumas, threats, obscene phone calls, intimidation, harassment of any nature (sexual, bullying, etc.), stalking, and verbal outbursts.
The workplace. a.
A workplace may be any location either permanent or temporary where an employee performs any work-related duty.
b.
This includes, but is not limited to, the buildings and the surrounding perimeters, including the parking lots, field locations, clients’ homes and traveling to and from work assignments.
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Workplace Violence and Bullying November 2016 Source: Occupational Safety and Health Administration https://www.osha.gov/SLTC/workplaceviolence/index.html & https://www.osha.gov/dte/library/wp-violence/healthcare/wpvhealth.pdf IV.
WHY DOES WORKPLACE VIOLENCE OCCUR? A.
B.
Why Does Workplace Violence Occur? 1.
Generally workplace violence does not happen at random or "out of the blue." To be sure, incidents happen that no one can foresee, but typically indicators are present before an incident.
2.
Perpetrators usually display some concerning behavior before acting out in a violent manner at work. Awareness of indicators and readiness to escape or de-escalate potentially violent situations is essential.
Be Aware of Environments That Increase Chances of Being a Victim. The National Institute for Occupational Safety and Health (NIOSH) has identified many factors which may increase a worker’s risk of being a victim of workplace violence; those factors are as follows: 1.
Contact with the public.
2.
Dealings where there is an exchange of money.
3.
Delivery of passengers, goods or services.
4.
Having a mobile workplace such as a police cruiser.
5.
Working with unstable or volatile individuals in such fields as healthcare, social services or criminal justice.
6.
Working alone or in small numbers.
7.
Working late at night or during early morning hours.
8.
Working in high crime areas.
9.
Guarding valuable property or possessions.
10.
Working in community based settings.
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Workplace Violence and Bullying November 2016 C.
Domestic Violence. Domestic violence is a pattern of behavior in which one intimate partner uses physical violence, coercion, threats, intimidation, isolation and emotional, sexual, or economic abuse to control the other partner in a relationship. Stalking or other harassing behavior is often an integral part of domestic violence.
V.
KNOW THE EMPLOYER’S WORKPLACE VIOLENCE POLICIES, PLANS & RESOURCES: A.
Safe Workplace. Generally, employers take steps to ensure a reasonably safe workplace. This means striking a balance between employee privacy and providing a workplace that is safe as possible. That being said, employees should arm themselves with knowledge of the employer’s policies and plans to reduce the chances of being a victim of workplace violence. 1.
Privacy: A delicate balance. The Supreme Court has stated that the Fourth Amendment provides government employees a reasonable expectation of privacy in their places of work. However, employee’s right to privacy must be balanced with the employer’s need to supervise and control the work environment. Moreover, employee privacy may be diminished depending on office practices, policies, or regulations. O'Connor v. Ortega, 480 U.S. 709 (1987). Employers have considerable latitude with regard to employee safety. For example, an employee had no right to privacy in his personal case that contained a gun which was inadvertently discovered by a coworker. Coats v. Cuyahoga Metro. Hous. Auth., 78012, 2001 WL 370649 (Ohio Ct. App. Apr. 12, 2001).
B.
Workplace Violence Policy. Employees should review, understand and know the contents of an employer’s workplace violence policy. Below are common elements of an employer’s workplace violence policy. 1.
The following should be clearly defined in the policy: a.
What constitutes workplace violence.
b.
The reporting procedure. This should include how to report acts of violence that have occurred but also providing a way in which employees can alert management of troubling behavior.
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Workplace Violence and Bullying November 2016
c.
The investigation process. This not only includes the review and evaluation of all complaints but also the proper channels for following up with individual(s) who made the complaint.
d.
Consequences for violating the policy. i.
2.
A zero-tolerance approach should be taken when it comes to workplace violence. Employers should take the stance that no threatening or violent behavior will be tolerated and no violent incident will be ignored.
Prohibiting firearms. Most employers have policies prohibiting employees, or anyone except law enforcement, from bringing a firearm onto the employer’s premises. Additionally, employees are almost always prohibited from carrying a concealed weapon in the course of their employment. Employees are well advised to know and comply with an employer’s firearm policy. Despite prohibitions against firearms employees should keep a lookout for employees possessing firearms.
C.
Does Your Employer Conduct Pre-Employment Screening? While it is within an employer’s purview the extent to which pre-employment screening are conducted, employees should be knowledgeable of the process. Generally, pre-employment screening reduces the likelihood of violence occurring in the workplace. Accordingly, employees should be familiar with the process and offer suggestions where appropriate. Typically, effective preemployment screening processes will include the following elements: 1.
Use job application forms that include a waiver and release to allow the employer to verify the information as stated in the application.
2.
Check all references and inquire as to prior incidents of violence.
3.
Conduct criminal background checks and utilize drug screening procedures as permitted by law.
4.
Take advantage of publicly available information on the internet.
5.
Screen independent contractors as well as “actual employees.”
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Workplace Violence and Bullying November 2016 D.
Training. Often, employers conduct workplace violence trainings. One should, of course, attend and participate in any such employer offered trainings. Employees may also consider obtaining non-employer workplace violence and/or self-defense training. The following are a few online training resources: https://www.osha.gov/SLTC/workplaceviolence/otherresources.html; http://emilm s.fema.gov/IS106.14/index.htm 1.
Training. While trainings increase awareness and decrease potential incidents, a particularly difficult matter to train for and address are employee threats. The line between real threats and inappropriate jokes is often narrow and blurred. It is important to educate yourself on the following: a. b. c.
Threat detection. Threat assessment. Threat management.
Be prepared to react if an emergency does arise, including the following: a. b. c. d. e. f. g. 2.
Recognizing the sound of gunshots. Reacting quickly when gunshots are heard or an assault has taken place. Proper evacuation procedures if necessary. Identifying the best places to hide if one cannot escape a violent situation. How to confront the shooter if there is absolutely no other option. Reacting when law enforcement arrives on the scene. How to deal with the aftermath of a tragedy.
Understanding impediments to preparedness: a.
Employer culture. An effective workplace violence program requires that employers are aware of their culture and able to identify problem employees, departments, etc. It is essential employees assist in these efforts.
b.
Lack of communication. Lack of well-defined policies, proper training and open communication leaves employees uninformed and impairs their ability to take proactive steps to reduce workplace violence.
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Workplace Violence and Bullying November 2016 Workplace violence training should be an ongoing conversation with open the lines of communications to dis-incentivize troubling behavior. c.
Bad apples. Be aware of problem behavior exhibited by employees. Do: Accurately report objective behavior observed that is cause for concern. Don’t: Judge one’s behavior or make assumptions regarding unknown information.
E.
Employee Assistance Programs. EAPs are designed to assist employees to deal with personal problems that may have a detrimental impact on their performance and behavior in the workplace. If you believe a coworker might benefit from EAP services, discretely notify the appropriate management individual. Additionally, EAP services are invaluable following an incident of workplace violence to address the following:
VI.
1.
Workplace violence does not only affect the victim. Other employees who have witnessed an incident of violence may also have been affected and need to utilize EAP services.
2.
Employers typically provide post-incident counseling for both victims and other employees who have been affected.
HOW EMPLOYEES CAN PREPARE AND PROTECT THEMSELVES A.
Awareness. 1.
Noticing changes in co-worker behavior can help prevent possible crisis situations. The following is a non-exhaustive list of changes to look for: a. b. c. d. e. f. g. h. i. j. k.
Increased use of alcohol and/or illegal drugs. Noticeable decrease in attention to appearance and hygiene. Depression/withdrawal. Resistance and overreaction to changes in policy and procedures. Repeated violations of company policies. Increased severe mood swings. Noticeably unstable, emotional responses. Explosive outbursts of anger or rage without provocation. Suicidal; comments about “putting things in order.” Behavior that may suggest paranoia (e.g., “everybody is against me”). Increasingly frequent mentions of problems at home.
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Workplace Violence and Bullying November 2016 l. m. n. o. p.
Escalation of domestic problems into the workplace. Talk of severe financial problems. Talk of previous incidents of violence. Empathy with individuals committing violence. Increase in unsolicited comments about firearms, other dangerous weapons, and violent crimes.
Source: Active Shooter Awareness Training https://share.dhs.gov/asaware2011 B.
Reporting. Reporting is a crucial component to ensuring your employer is aware of potentially dangerous or violent situations. There are a number of channels through which employees can make their employer’s aware of disturbing or unsettling behavior from co-workers: 1.
Communicating with your direct supervisor.
2.
Contacting human resources or the security department.
3.
Referring the employee to the employer’s Employee Assistance Program (EAP).
4.
Employees should be aware of the various ways in which their employers allow them to communicate this information. Employees should be aware of the following options for reporting: email, text, anonymous drop boxes, 24-7 tip lines, ethics hotlines, etc.
Source: http://www.fbi.gov/stats-services/publications/law-enforcementbulletin/january2011/workplace_violence_prevention C.
Training and Practicing the Plan. 1.
Employees should fully participate in training offered by their employers.
2.
Rehearsing, either mentally or physically, the plans of action will help reduce response time as well as facilitate your mental recall on how to respond if an emergency situation does arise. It would also be helpful to contemplate different scenarios in which violence might occur and how you would respond.
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Workplace Violence and Bullying November 2016 D.
Coordinating with Local Police. 1.
VII.
Be familiar with local police and police procedure prior to a crisis situation. This can facilitate prompt notification to authorities in the event of an emergency and allow emergency responders the opportunity to most efficiently respond.
CASE EXAMPLE – WORKPLACE THREAT AND POLICY IMPORTANCE City of Portsmouth v. AFSCME Local 1039, Arb. Bruce B. McIntosh, March 6, 2013. A city employee mentioned to his supervisor that the employee “should come in here with a bomb strapped to [him] and blow the place up.” The supervisor then alerted the City Manager and ordered for the workplace to be evacuated. The City subsequently completed an investigation and terminated the employee, citing workplace policies proscribing conduct that “threatens” or “intimidates” fellow employees. The terminated employee filed a grievance, in which he contended that the statements were made jokingly, and that the City’s decision to terminate violated the collective bargaining agreement. The arbitrator found for the City and upheld the employee’s termination as “for cause” and consistent with the collective bargaining agreement.
Presentation\FHKA Client Briefings\2016\11-1-16 FHKA Seminar\Workplace Violence and Bullying Outline
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