Workplace Bullying: Tips on Prevention and Taking Appropriate Action
From YourABA, Dec. 2010
Roughly one-third of the workforce will experience bullying in the workplace, said panelists of “Rebel Without A Cause: Best Practices for Responding to Workplace Bullying,” a session last month during the fourth annual Section of Labor and Employment Law Conference in Chicago. In fact, about two million violent crimes occur at work each year, according to U.S. Dept. of Justice statistics.
Despite the prevalence of workplace bullying, which can include verbal harassment such as threats, as well as physical altercations, only one-quarter to one-half of workplace incidents are reported by employees, revealed panelists.
There are several reasons for this significant underreporting. Victims may fear the aggressor, including retaliation from him or her. Also, many victims lack confidence that their employer will respond to the problem.
So, what can employers do to address bullying? Panelists agreed that employers should have a clear-cut anti-bullying policy that covers all acts of violence. “Ninety to 95 percent of the population will acquiesce to your expectations when you make your expectations clear,” said clinical psychologist Dennis A. Davis of Ogletree Deakins Nash Smoak & Stewart, PC. By emphasizing that it’s a zero tolerance policy that includes threats as well as hands-on, physical behavior, “what you’re saying to people is: All acts and all threats will be investigated.”
According to program materials, a good policy will:
- Define workplace violence;
- Provide a reporting procedure for bullying incidents;
- Encourage employees to report incidents by including such language as, “All acts will be investigated;”
- Include a “no retaliation” clause;
- Inform employees that violations of policy may result in discipline.
“Be quick to investigate,” said employment lawyer Carlos R. Perez of Reich Adell & Cvitan about employee claims. “You have to be equipped to meet with people, take evidence and make findings about the merits of these complaints, and you’ll be put in a position where you have to make judgments as to whether or not some discipline should take place.”
Documenting violations of anti-violence policies is critical, emphasized Perez, saying that employers often fail to do so. In many cases, employers see bullying but never take the next step of documenting violations. “Without such a foundation, it’ll be hard for an employer to take action.”
In dealing with bullies, Perez urged employers to use “progressive discipline”—verbal discipline, followed by written warnings—in order to lay the foundation for eventual termination.
Davis said the pre-hiring screening process is a first line of defense against bullying. He advises his clients to conduct a face-to-face interview with every potential employee. “You’ve got to eyeball them. There are certain things you just can’t tell about me unless you look at me.”
Watch how a potential employee treats the office staff. If a candidate is dismissive or condescending to a receptionist or other personnel, it’s likely he’ll bring that kind of behavior to the workplace, Davis noted.
Davis also recommended that employers require two letters of reference from every applicant. One has to be a personal reference. “I want somebody who has known this person personally to say, ‘I’ve known this person for years,’” said Davis. “When you insist on references, what you’re going to find is that a lot of those applications [from potentially bad employees] will die on the vine.” A bully won’t be able to get letters of recommendation because he will likely have a track record of alienating those around him—his family, his co-workers and his neighbors.
“Make sure resumes are factually accurate,” added Perez, who noted that a lot of employers, including public ones—school districts, in particular—do not check references.
Employers need more education about bullying. According to a Zogby poll, six out of 10 targets of bullying said their employers made their situation worse. “In some cases, the employers defended the alleged aggressor,” said panelist David Yamada, director of the New Workplace Institute at Suffolk University Law School.
To avoid exacerbating a bullying situation, employers should not:
- Ignore threatening or inappropriate behavior;
- Retaliate against the complainant;
- Be confrontational;
- Fail to document and respond to misconduct;
- Rely on employee assistance programs or healthcare providers to change the personality of employees;
- Ignore provisions in company policies.
“There are very few situations where you need to escort people out of the building,” said Perez, who cautioned, “That tends to be overkill and makes it harder to resolve the case.”
“The ‘exit parade’ has an adverse effect on those who see it,” added Yamada.
“Bottom line: If a person feels bullied, they ought to tell somebody,” said Perez. Unfortunately, said Yamada, “there is no standard protocol for reporting bullying; no magic answer.”
Several state legislatures are considering The Healthy Workplace Bill, which would define an “abusive work environment,” hold employers accountable and plug gaps in civil rights protections.
In addition to Davis, Perez and Yamada, the program included George L. Washington Jr., of Equant Inc. J. Randall Coffey of Fisher and Phillips LLP moderated the session.
“Workplace Bullying: Tips on Prevention and Taking Appropriate Action” is from the Dec. 2010 issue of YourABA, a e-newsletter for ABA members.