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Boss Behavior
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Boss Behavior
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
I had a former employee call me about the boss that took my place. She said that he is harassing her terribly & she is now out on mental stress leave because of it. She told me that he pulled her
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Forums » Topic Forums » Legal Forum » Boss Behavior
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Boss Behavior
posted at 11/9/2010 9:07 AM EST
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
I'm gonna jump on rruperts bandwagon here and ask Dave for more information.
It would appear to me that the claims Dave is referencing would be a stretch. Of course so is the idea of time off of work for stress as most jurisdictions don't recognize that as a WC type issue and I think you'd be hard pressed to put it under FMLA (although I think it easier than WC). Thanks in advance Dave |
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Boss Behavior
posted at 11/9/2010 10:36 AM EST
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Posts: 210
First: 1/4/2003 Last: 7/11/2011 |
She got yelled at by a jerk....and then called in sick for THREE days to recover from it?
I'm thinking that calling out for 3 days following that tirade didn't improve her situation. Anyway. At this point, the employee needs to look out for their own best interests. Sometimes speaking up about a bullying jerk boss is the right thing to do, and certainly I would hope the leadership of the company would care and appreciate that. (I would hope our employees would be comfortable speaking up in a situation like this) But the reality is, in many circumstances, going over the bosses' head to complain, no matter how justified, could backfire. If the boss is a jerk, chances are other people are already aware he is a jerk and have made some kind of decision to overlook it. The situation described doesn't sound like any laws were broken - it's not illegal to be a jerk most of the time. If she complains and the situation is looked into, she has fortified the bosses' case by being an employee who calls off sick for 3 days after a disciplinary meeting. The badgered employee in this case has some choices to make about how to deal with it. Stay and tough it out, stay and fight against this guy, or leave. In the short term, I would advise her to be a model employee. Having the jerk's poor behavior affect her performance negatively does not help her. |
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Boss Behavior
posted at 11/9/2010 11:30 AM EST
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Posts: 29
First: 6/9/2009 Last: 4/26/2011 |
HRPro writes, "What you describe sounds more disciplinary and unless the CBA states differently the boss does not have to allow someone to be present during a disciplinary session."
I would agree in part. CBAs usually require the presence of a rep. It seems that a person should be allowed to respond to discipline in writing or in person? The Laudermill rule seems to require the employer to give notice as to why this discipline is taking place. A sort of transparency rule that keeps managers like the one mentioned here from the type of action colleen178 is discussing. Thus, if a manager anticipates discipline, the union rep is informed and so on. |
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Boss Behavior
posted at 11/9/2010 12:55 PM EST
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
TCsquared writes:
HRPro writes, "What you describe sounds more disciplinary and unless the CBA states differently the boss does not have to allow someone to be present during a disciplinary session." I would agree in part. CBAs usually require the presence of a rep. It seems that a person should be allowed to respond to discipline in writing or in person? The Laudermill rule seems to require the employer to give notice as to why this discipline is taking place. A sort of transparency rule that keeps managers like the one mentioned here from the type of action colleen178 is discussing. Thus, if a manager anticipates discipline, the union rep is informed and so on. TcSquared, The Laudermill ruling applies to public sector employees and unless this person is a public employee it would not apply. However, continuing for those who may not be familiar, Laudermill, in essence, requires a âpretermination hearingâ if a termination is to occur for public employees (principally in OH where a public employee can only be fired for cause). I do not see where this was a termination so even under Laudermill there is no applicability regardless of the type of employment, e.g. public, private, etc. While some may claim it advisable to do this with any employee, it is not required and at present no evidence exists that supports the triggering of Laudermill in this instance. Often times Weingarten is confused with Laudermill. The Weingarten rule is an employeeâs right to be represented by a union at an investigative interview with his or her employer when the employee reasonably believes that the interview may lead to disciplinary action. This right to have the union steward present is called the Weingarten right. In that it is evident that this was a disciplinary action and it was post any investigation Weingarten would not apply. An employee has NO right to the presence of a Union representative where: The meeting is merely for the purpose of conveying work instructions, training, or communicating needed corrections in the employee's work techniques. The employee is assured by the employer prior to the interview that no discipline or employment consequences can result from the interview. The employer has reached a final decision to impose certain discipline on the employee prior to the interview, and the purpose of the interview is to inform the employee of the discipline As of June 2004 Weingarten only applies to unionized environments. I agree that CBA's often times state that a Union Rep will be present during disciplinary hearings. Consequently, under those circumstances a Rep should be present. I can assure you that this clause has never been in any CBA I have negotiated. |
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Boss Behavior
posted at 11/10/2010 4:03 AM EST
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Posts: 544
First: 9/27/2004 Last: 9/13/2011 |
I agree that going over the bosses' head can be a career limiting move, that's exactly why I didn't do it at the time. But it's been over 15 years and I still wish I had spoken up for myself instead of taking his abuse and watching him abuse others. He was fired for a costly mistake that no one felt obligated to point out to him. I don't feel good about that either.
Besides, in this case, I think that horse is already out of the stall. |
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Boss Behavior
posted at 11/10/2010 4:13 AM EST
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Posts: 410
First: 1/26/2006 Last: 11/15/2010 |
Hi:
Negligent infliction of emotional distress and intentional infliction of emotional distress are causes of action recognized in almost all states. While state courts tend to be rather circumspect in their application of such laws, plaintiff attorneys might well raise these claims (especially the negligent infliction) and certain courts have recognized the viability of such claims (e.g., Washington state appeals court)in the employment context. I trust this is helpful. Dave Arnold,Ph.D., J.D. |
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Boss Behavior
posted at 11/10/2010 4:56 AM EST
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
I think that was what Dave was getting at when he points out that state courts have been rather circumspect in application of these causes of action.
I concur with your understanding - I've always understood that these cases are difficult to bring to court and win. |
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Boss Behavior
posted at 11/16/2010 5:22 AM EST
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Posts: 32
First: 11/16/2010 Last: 1/3/2011 |
Proving either the tort of negligent infliction of emotional distress or intentional infliction of emotional distress is extremely difficult. The claimant must prove that the conduct is extreme and outrageous; that it goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community.
The only statutory remedies available in the United States for workplace abuse require that the abuse is because of a person's protected status (i.e., he/she is being treated differently on the basis of religion, gender, national origin, skin color, disability, etc.). The Healthy Workplace Bill is currently pending in a number of states. This legislation would provide a civil cause of action for employees who are abused in the workplace. The standard of proof is relatively high - the plaintiff must prove malice. While I don't believe that a new law would amount to any sort of a panacea, I do believe it may prompt employers to take workplace abuse much more seriously. http://www.healthyworkplacebill.org/ As a conflict consultant, I would urge employers to seek external, impartial assistance whenever there are accusations of workplace abuse (aka "bullying"). Thanks to everyone who has commented. Debra Healy, MS, CLA agree2agree Healy Conflict Management Services www.healycms.com |
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Boss Behavior
posted at 11/16/2010 9:02 AM EST
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Posts: 210
First: 1/4/2003 Last: 7/11/2011 |
The Healthy Workplace Bill - of COURSE a conflict consultant would be in favor of it -- that means more work for you!
I suppose as an HR person I should be glad to have something that would ensure my area of expertise has more work too. But no, I'm sorry, this kind of legislation is bad for American business, imo. |
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