Attorneys Advise Action to Prevent Bullying, Workplace Violence

By Beth Mirza Sep 28, 2010
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Half of American adults report that they have been bullied or have witnessed bullying at work, reported to a
2010 Zogby poll.

Speakers at a seminar given by the Washington, D.C., law firm Epstein Becker Green gave HR professionals tips to stop bullying effectively in their workplaces and prevent workplace violence.

Bullying, according to attorney Kara Maciel, is mistreatment of a person that is deliberate, hurtful and repeated and that prevents the person from performing his or her job. A bully often is trying to control or manipulate the person, she said. Bullying can be:

  • Slander.
  • Name calling.
  • Yelling.
  • Comments about appearance or lifestyle.
  • Teasing.
  • Threats or intimidation.
  • Unfair criticism.
  • Ignoring.
  • Aggression.
  • Physical assaults.
  • Unreasonable work assignments.
  • Menial task assignments.
  • Gossiping.

Bullying can come from an employee, vendor or customer and can happen during or after work, said Heidi Hayden, SPHR, chief HR officer for the firm. It can happen in person or via e-mail, mobile devices or Internet chat rooms and web sites.

This behavior is not typically harassment of a protected group or person because it is not race- or gender-based, Maciel noted, so technically it is legal behavior. But it is disruptive and inappropriate in the workplace and should be prohibited.

However, managers and supervisors shouldn’t be afraid to give criticism and performance feedback to employees. “HR and managers can legitimately control others’ work,” Maciel said. Coaching, counseling, discipline, evaluations, standards and goals—delivered in a respectful manner in line with policies and procedures—are acceptable behaviors.

Employers are paying the price when bullying happens in their workplaces. In 2008, the Indiana Supreme Court handed down a verdict of $325,000 against a surgeon who screamed at a nurse during an operation. The court upheld her claims on intentional infliction of emotional distress.

More costs could be coming via the proposed Healthy Workplace Bill, which has been proposed in 17 states. The legislation would make it an unlawful employment practice to subject an employee to “an abusive work environment,” said Maciel. Supervisors could be held liable for their actions, not just the employer, she said, and cases would go straight to court. No state agency would take on the case prior to the parties appearing before a judge.

An Employer’s Liability

According to Thomas Cox, Jr., an attorney with the firm, employers could be held responsible for their employees’ actions under the Occupational Safety and Health Act’s general duty clause to provide a safe workplace. Employers could be held liable for negligent hiring if they bring on a person who they knew or should have known was likely to cause harm, and for negligent referral, if they don’t warn other employers of a past employee’s violent history.

An employer who retains an employee who threatens or exhibits violent conduct could be guilty of negligent supervision and retention, Cox added. Documenting all steps taken in the discipline of all employees is more important than ever.

Employees might have claims against their employers under anti-discrimination laws, Cox said. In one case, an employee’s co-workers taunted him repeatedly for not being “manly.” Some federal courts have found that this behavior constitutes a hostile work environment based on “sexual stereotyping.”

How Not to Hire a Bully or Violent Employee

Hayden suggested pre-hire background screenings to avoid introducing a violent person to the workplace. She emphasized that employers should have a policy to govern their actions during the screening process and that the policy should be followed and acted on consistently.

During the hiring process:

  • Verify all statements on the employment application and resume and in job interviews. What happened during any employment gaps? Be accurate.
  • Verify dates of employment and positions held with former employers. Check references.
  • Ask prior employers about specific threats or acts of violence.
  • Conduct checks in accordance with legal mandates, including the Fair Credit Reporting Act and state laws on arrest records.
  • Do not rely solely on the Internet for screening and verification. You can’t be sure that the information is accurate.
  • Document everything you’ve asked and all answers received, who you spoke with and which sources you’ve consulted.
  • Tell applicants in writing that any falsification of information will lead to their employment being terminated.
  • If the applicant is hired, keep all the documentation you’ve gathered for the full course of his or her tenure.

'Scan Your Environment'

Hayden suggested that HR professionals “scan your environment.” Is inappropriate behavior addressed? Are employees leaving one department at a higher rate than other departments? How well are policies followed?

Employee surveys can help identify problem areas, she said, but HR should “be ready to take action” if the survey points out problems.

Conduct investigations to address problems the first time they crop up, Hayden said. “You might as well address it the first time; you may not have to worry about it happening a second time.”

Investigations should focus on facts, not opinions, she said, and should be thorough, dispassionate and objective. Compare witness statements and pieces of evidence, such as key card records and time clock data. Document everything you do.

Determine the appropriate action by considering:

  • What are the facts?
  • How serious is the infraction?
  • Did the employee know expectations?
  • How did the employee know?
  • Was the employee provoked?
  • Has the issue been investigated fully?
  • Has the employee been spoken to about the issue?
  • Have policies been applied consistently? (HR should be involved in all investigations to ensure this.)
  • Is the response under consideration appropriate to the incident and to the employee’s rank in the company?

Finally, tell the complaining employee the resolution of the problem so that he or she knows that you took their complaint seriously.

Training can prevent workplace bullying and violence, Hayden said. Training should be mandatory throughout the organization and include the organization’s policy on incident reporting, how to recognize warning signs of bullying and violence, how to respond effectively, how to resolve conflict, how to handle crises and emergencies (as in a crisis response plan), and how to use the Employee Assistance Program. Make sure that training on bullying and violence prevention corresponds with training on harassment prevention, Hayden added.

Finally, Hayden suggested making sure that all HR systems are working together to prevent bullying and to avoid prompting workplace violence. Do new-hire processes include background checks? Do orientation and training address violence prevention? Does the compensation and benefits system encourage employees unintentionally to compete too much? Do evaluations address how employees treat others?

“Do not inadvertently reward bad behavior,” Hayden cautioned.

Get Policies in Place

Cox and Maciel urged HR professionals to review their policies addressing bullying, violence and workplace behavior and make sure that they are up-to-date with laws and any changes in the organization. Have legal counsel review them to be sure that they are in line with state and federal regulations.

Written policies should be developed for:

  • Background screens.
  • Reference checks.
  • Appropriate workplace behavior, to include zero tolerance for truly egregious behavior, a ban on weapons in the workplace (where permitted) and definitions of unacceptable behavior such as bullying, violence and intimidation.
  • Incident reporting.
  • Complaint procedure.
  • Disciplinary action.
  • Conflict resolution.
  • Training.

“If you don’t have a plan [to prevent or respond to workplace violence], that is almost per se negligence,” Maciel said. “You need a plan that incorporates HR, legal, security and IT. That can be a game changer.”

Beth Mirza is senior editor for HR News. She can be reached at Beth.Mirza@shrm.org.​​

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