Bullying is everywhere from the schoolyard to the brickyard. But what constitutes bullying? Rarely in the workplace do we find examples of physical bullying, but we certainly see many instances of workers intimidating or excluding their co-workers, managers berating employees for their performance and other forms of abuse.
Recently four states have begun addressing abusive conduct in the workplace by law or regulation. Tennessee and Utah each have two Republican senators. California and Minnesota each have two Democratic senators. That these states have conservative and liberal leanings shows that willingness to address abusive conduct in the workplace is not related to political orientation. It is also notable that these four states are arrayed in the four time zones of the continental United States.
What does this mean for your organization if you are in those states? And what does it mean if you are not?
Implications for Other States
Thoughts of addressing abusive conduct (or workplace bullying) have been simmering for several years in many state legislatures. In 2015, three states addressed it pursuant to legislation (California, Tennessee and Utah) and one by regulation (Minnesota).
If one or two states did it, you might consider it a fluke or an outlier. But action by four states, with diverse politics, spread across the continent, suggests that more states will eventually join them.
Who Is Affected by These Laws and Regulations?
The Tennessee Healthy Workplace Act affects all offices of state, county and municipal government. The California Assembly Bill No. 2053 affects all employers with 50 or more employees in both the government and private sector. The Utah law, Workplace Abusive Conduct Amendments to Promote aHealthy Workplace, affects only the state executive branch offices.
Minnesota addressed abusive conduct in its HR/LR Policy #1432 Respectful Workplace.”The policy does not speak of “abusive conduct.” It does describe “disrespectful and/or unprofessional behavior” (which is abusive conduct). This policy applies to employees of executive branch agencies and some employees of state retirement systems. It also applies to nonstatus employees and “nonemployees” (of the state) such as volunteers and contractors.
Other employers and employees are likely to be indirectly affected, as explained below.
What Do the Laws and Regulations Do?
The four states have different, but closely related, approaches. We will consider them one by one.
The California law states: “For purposes of this section, ‘abusive conduct’ means 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. Abusive conduct may include 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 shall not constitute abusive conduct, unless especially severe and egregious.”
The California law requires covered employers periodically to train supervisors on “how to prevent abusive conduct.” This is more than training on the definition. The state issued regulations giving some guidance on this on April 1. Keep in mind that this law does not prohibit abusive conduct. It simply requires training on it.
Kevin Kish, the director of the California Department of Fair Employment and Housing, the state’s civil rights agency, told me that his department would distribute a fact sheet on the law to the state agencies and post it on the DFEH website for use of private-sector employers. The California agency has only 67 employees to enforce all of its laws affecting almost 40 million people, but it does have experienced lawyers.
The Tennessee law defines abusive conduct to include such behavior as: “(A) Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; (B) Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or (C) The sabotage or undermining of an employee’s work performance in the workplace.” Further, the law grants protection from certain lawsuits to government agencies that have adopted a model program or its equivalent. It holds a carrot, but not a stick.
The Utah law provides for training to educate employees and supervisors about how to prevent abusive workplace conduct. It says that the training shall include information on: “(i) what constitutes abusive conduct and the ramifications of abusive conduct; (ii) resources available to employees who are subject to abusive conduct; and (iii) the grievance process.”It is clear that the Utah Legislature was thinking about implementation when it passed the bill.
The Minnesota regulation is proactive to promote a respectful workplace. But to be clear, it says: “Examples of disrespectful and/or unprofessional behavior include but are not limited to: Exhibiting aggressive behaviors including shouting, abusive language, threats of violence, the use of obscenities or other nonverbal expressions of aggression; and behavior that a reasonable person would find to be demeaning, humiliating, or bullying.” The regulation also sets out procedures for addressing violations of the policy.
The Minnesota regulation takes care to explain that “disrespectful and/or unprofessional behavior” does not include any of the following:
• The normal exercise of supervisory or managerial responsibilities, including, but not limited to performance reviews, work direction, performance management, and disciplinary action provided they are conducted in a respectful, professional manner.
• Disagreements, misunderstandings, miscommunication or conflict situations where the behavior remains professional and respectful.” (These provisions should reduce stress for managers and prevent minor complaints.)
Edwin Hudson, the deputy commissioner for enterprise human capital of the Minnesota Management & Budget with responsibility for this, was enthusiastic about this rule. He told me that the state had a 4 to 5 percent unemployment rate, which means that there is real competition for talented staff. He hoped that making a fine workplace would give the state a competitive edge in attracting and keeping the best employees. He said the policy was developed in consultation with the Minnesota Association of Professional Employees. He has the governor and the union supporting this effort. He wants the state government to be the model employer in the state.
If the regulation does what Johnson hopes, it will have broad implications. Great places to work should have advantages in recruiting, retention and productivity — in his state and others.
Noteworthy Elements of Laws, Policies and Regulations
The California law states that abusive conduct is behavior that “is unrelated to an employer’s legitimate business interests.” This is a subtle and useful criterion.
The California Fair Employment and Housing Council regulations on the law emphasize training on the “negative effects of abusive conduct on the victim” and others at work. They also address the “detrimental consequences” of such conduct on the employer, such as reduction in productivity and morale. (Note that the abusive conduct provisions were placed in the section on sexual harassment, but are independent of them according to Kish.)
The Tennessee law says: ” ‘Abusive conduct’ means acts or omissions.” This captures the aggression perpetrated by purposeful, malicious inaction or refusal to act.
The Tennessee law directed the Tennessee Advisory Commission on Intergovernmental Relations, or TACIR, to produce a “model” abusive conduct policy. In consultation with experts and interested parties, the staff produced a sensible Model Abusive Conduct Prevention Policy. The commission itself, made up of state legislators and mayors, refused to accept the model. (Many members had reservations about the law itself.) Nonetheless, the staff’s model policy is just fine and can be used by businesses and states.
Utah designed a thoughtful and useful “complaint intake form.” Companies and governmental entities could take it as is or modify it.
Minnesota promotes resolution of violations of its policy (against “unprofessional behavior”) at the lowest level. It says: “If possible, the employee or third party who feels a violation has occurred should have a conversation with the other individual(s) involved.” Only then it advises on further steps up to formal complaints.
Picking Up From a Stumble
Title 50 Chapter 1 Section 503 of the Tennessee Code says: “(b) The model policy created pursuant to subsection (a) shall: (1) Assist employers in recognizing and responding to abusive conduct in the workplace; and (2) Prevent retaliation against any employee who has reported abusive conduct in the workplace.” As noted, the commissioners blocked the model policy, but the law has a way around that.
The law says: “[I]f an employer… adopts a policy that conforms to the requirements set out in subsection (b), then the employer shall be immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish.”
Ethel Detch, senior research consultant at the Tennessee Advisory Commission, informed me that employers are adopting policies that conform to the requirements of the law. Further, I learned that one of the expert consultants to TACIR, Jackie Gilbert, a business professor at Middle Tennessee State University, has had her upper-level business students presenting the case for anti-bullying policies to local business leaders. That is a win-win for the students and businesses.
Words From the Opposition
At the TACIR meeting on Jan. 28, 2015, State Sen. Jim Tracy, R-Shelbyville, said, “I think this is opening up a can of worms. … I don’t think this is needed.” And Rep. Ryan Haynes, R-Knoxville, said, “I have a hunch that there will be legislation to wipe this bill off the books.” (These statements are in the video of the meeting.) I will keep an eye on this.
Who Can Use These Three Laws and One Regulation?
You can. Your company can. Your state can. These new laws and regulations work toward minimizing psychological and emotional aggression in the workplace. Over time, organizations that move in this direction will have a competitive advantage over those that do not, in attracting and retaining talented employees. (People are not just rating hotels and restaurants anymore.)
For example, U.S. Secretary of Labor Thomas Perez can use the work done by these states. The secretary recently initiated a “Behavior Matters” project at the U.S. Labor Department. His task group could borrow the Minnesota Respectful Workplace policy for this project. They can pick up “acts or omissions” from Tennessee, and they can use the Utah complaint intake form for implementation. They can also point to behavior that “is unrelated to an employer’s legitimate business interests” from California.
Why not borrow ideas from the leaders?