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Posted by David Katz | Jul 10, 2015 | 0 Comments

No one disputes that legislation that would give Massachusetts employees legal recourse if they're bullied at work is well-intentioned. But is it practical?

The bill, the Healthy Workplace Bill, has elicited a largely chilly response from the business community. Opponents say that defining a behavior like bullying is highly subjective, and the gray area could hurt employers who are simply trying to manage employees.

That may be why the bill has failed to make it to the floor of the state Legislature for a vote. Supporters had hoped lawmakers would take it up in the last legislative session, which ended July 31, but they did not.

It was the third attempt to get the bill passed, and the legislation has gone through several revisions. Now, supporters must begin the process again in January when the next session begins.

Chris Geehern, executive director of the Associated Industries of Massachusetts (AIM), a key Bay State business lobbying group, testified against the Healthy Workplace Bill. According to Geehern, none of AIM's member businesses have voiced support for the bill.

Gehirn said one person's definition of bullying is different from the next. He recalled working in a busy newsroom as a journalist, where editors occasionally lashed out. Gehirn doesn't believe he was bullied, but he said not all would agree.

“(These cases) become mired in subjectivity, and that has the potential for creating a bonanza for trial lawyers,” Geehern said.

‘High threshold' of proof

The Healthy Workplace bill does seek to define bullying clearly and requires an “incredibly high threshold” for an employee to prove he or she has suffered physical or psychological harm, according to Gary Namie, a psychologist from Bellingham, Wash., who helped originate the Healthy Workplace Bill, along with his wife, Ruth Namie, also a psychologist.

The Names began working on a bill after Ruth experienced workplace abuse in the mid-1990s. Soon after, Gary Namie said Suffolk University law professor David Yamada contacted the Names when he became interested in drafting a law to serve an unmet need.

“The laws are inadequate to compel employers to create good policies,” Namie said of existing harassment laws that provide legal recourse for members of protected classes, such as ethnic minorities, but give others limited options.

It's true that it's difficult for an employee to sue an employer for harassment if the employee doesn't fall within a protected class, said Robert Kilroy, chairman of the Labor and Employment Group at Mirick O'Connell in Westborough. Still, he opposes the Healthy Workplace bill for reasons similar to those Geehern cited. Kilroy predicted such a law would lead to frivolous lawsuits, which could cost employers thousands of dollars.

“Without a doubt, it's going to increase the costs of doing business in Massachusetts,” Kilroy said.

The bill provides employers “affirmative defenses,” which gives them the opportunity to argue that corrective actions taken against employees fall in line with standard management practices.
The cost of defense

But Kilroy said that simply responding to a lawsuit in this manner can cost thousands.

Kilroy also said that because at-will employment is assumed in Massachusetts unless otherwise stated, employers have the freedom to terminate employees for any reason — including bullying co-workers. He predicted that a workplace bullying law would open up the possibility of legal retaliation by someone wrongfully accused of bullying and make employers less likely to exercise that right to terminate.

Despite his concerns, Kilroy isn't convinced that the Healthy Workplace bill is close to becoming law in Massachusetts, given what he said is a lack of support from the business community.

Neither is David Katz, managing partner at Katz Law Group, also in Westborough. Katz, who specializes in employment law, supports the Healthy Workplace Bill, given the large volume of cases he's dealt with that he believes were legitimate examples of workplace bullying.

I think it's across every industry,” Katz said. But he noted that not even California has been able to drum up support for the bill, and that state is usually at the forefront of employee protection legislation.

However, Allen Falcon, CEO of cloud services firm Cumulus Global in Westborough, isn't so sure the bill is a substantial threat to employers. He recognized the concern that the law could lead to greater liability and expense for employers, but he believes companies would simply integrate the law into their employee training programs and company cultures, as they do with sexual harassment laws.

Falcon, who employs 10, said he doesn't believe implementing such rules is detrimental to the work environment or businesses.

Establishing behavior standards in the workplace

To Falcon, avoiding workplace bullying is a matter of setting certain expectations for behavior. Falcon hasn't been a victim of workplace bullying, but he's known people who have. He believes small companies like his are able to keep it at bay more easily than larger companies, where “pockets” of misbehavior may go undetected.

“We're small enough that we really haven't had situations where that's been a major issue. When things have been said or done, we've just addressed it directly with the parties,” said Falcon, adding that people who don't adhere to company standards for behavior are terminated.

While the Healthy Workplace bill hasn't been passed in any state, Gary Namie said supporters are keeping a close eye on its fate in Massachusetts. The Bay State and New York are proponents' “great hopes” for passage, Namie said. And though it's been delayed until next year at the earliest, he's undeterred.

“We take the business lobby's opposition as a compliment. If they didn't take it seriously, they'd ignore it,” Namie said.

About the Author

David Katz

Attorney David S.Katz is the founder and managing partner of the Katz Law Group, P.C., located in Westborough, Massachusetts...


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