First published in, and republished with the permission of, the California Employment Law Letter by HR Hero, a division of BLR.
California Employment Law Letter
THE PUBLIC SECTOR
Workplace bullying in the public sector: ‘policy’ questions
by Jeff Sloan and Elina Tilman
Renne Sloan Holtzman Sakai, LLP
As we discussed in the September 22, 2014, issue
of California Employment Law Letter (see “Be prepared for new paid sick leave law and more in 2015!”),
the California Legislature enacted Assembly Bill (AB)
2053, requiring employers to include antibullying
(“abusive conduct”) training as part of their sexual
harassment training effective January 1, 2015. So far,
no state has had the gumption to adopt an outright
prohibition against workplace bullying.
With commentators and policy makers regularly
documenting the adverse impact bullying has on productivity, morale, attendance, turnover, and medical
and workers’ compensation claims—and with statistics indicating that bullying is nearly four times as
prevalent as illegal harassment—we need to ask: Why
hasn’t there been a groundswell of legislative support
for antibullying policies at either state or local levels?
Why not prohibit workplace bullying?
There are two answers. First, many public employers believe their existing rules of conduct provide
an ample basis for investigating and appropriately
resolving bullying claims. They point out that under
their existing policies, discourteous treatment, conduct unbecoming a public employee, violence, harassment, intimidation, or abuse of authority are all
“causes” for discipline. These causes, they assert, are
broad enough to cover bullying behavior.
Second, many public employers fear that an explicit prohibition against bullying behavior will fuel
unwarranted grievances and lawsuits over personality conflicts, impede management’s ability to supervise and discipline errant employees who believe
their supervisors have bullied them, and allow employees to “game the system” at the expense of public
employers.
For instance, commentators on unsuccessful New
York legislation said, “Anti-bullying legislation would
allow employees having nothing more than ordinary
disputes and personality conflicts with their supervisors and co-workers to threaten their employers with
litigation. Surely some of these disputes would end up
in court even though they wouldn’t rise to the level of
actionable bullying.”
These answers aren’t entirely satisfactory. Proponents of antibullying policies maintain that workplace
6
bullying can be prevented only through specific policies and procedures, effective education and training
of all personnel about the perils of and prohibitions
against bullying, and rigorous enforcement of “zerotolerance” policies. Pointing to the experiences of
other countries that have implemented antibullying
policies, proponents also maintain that fears of abuse
by “gamers” of the system are exaggerated and can
be alleviated through proper administration of wellwritten policies.
Pointers for drafting
antibullying policies
So far, very few antibullying policies exist in the
public sector. Nevertheless, given the prevalence of
workplace bullying, personnel managers should consider the pros and cons of implementing such a policy.
What are the possible components of an antibullying
policy? Here’s our compilation of options:
• A tailored definition based on an objective
standard;
•
Examples of prohibited behaviors;
• Emphasis that the policy doesn’t prohibit appropriate supervision and discipline of employees;
• Descriptions of the appropriate avenues for reporting bullying and the process you will follow
in addressing the complaint;
• Prohibition on retaliation against employees who
report bullying;
•
A prescription for regular training;
•A reference to the availability of the agency’s employee assistance program (EAP) for addressing
concerns about workplace bullying; and
•A hotline for reporting bullying, harassment, or
discrimination.
Sample policies and other relevant information can be found at http://publiclawgroup.com/
publications/articles/workplace-bullying/.
California’s new workplace
antibullying training requirements
Effective training is essential to prevent workplace
bullying. A model for such training is California’s
AB 2053, which requires employers with 50 or more
October 27, 2014
California Employment Law Letter
employees to add an “abusive conduct” component
to the sexual harassment prevention training already
required for supervisors. The two-hour training must
be conducted by persons with proper knowledge and
must provide interactive and practical educational
guidance on abusive conduct and on federal and state
laws governing sexual harassment. Showing a video
will not suffice.
Bottom line
policy. Unionized employers also need to be
sure their proposed policies are clear enough to
avoid interfering with employees’
rights to express themselves regarding terms and conditions of
employment.
Sloan
Here are three important points to remember:
(1) Jurisdictions that don’t have antibullying policies
should consider the pros and cons of implementing one.
(2) In unionized workplaces, employers must give
unions notice and an opportunity to request
bargaining before implementing an antibullying
continued from pg. 5
8, 2009. Then, when Kindt called in sick on November
19, Trango told him he was no longer needed. On November 22, Kindt demanded payment of his regular pay
through November 19, his unused vacation pay, his unpaid salary for the remaining portion of the six-month
termination notice period specified in the offer letter,
and waiting-time penalties for every day he wasn’t paid.
On November 28, Kindt received his final paycheck.
It didn’t include pay for the six-month notice period or
any waiting-time penalties.
On December 9, Kindt started a new job in San
Diego at Convergence Technologies, Inc. (CTI). Three
days later, Seaman called him and allegedly said he was
under the impression Kindt had filed a wrongful termination lawsuit against Trango and that if he dismissed
it, the company wouldn’t interfere with his new employment at CTI.
On December 19, Trango’s senior vice president and
general counsel sent an e-mail to CTI, attaching the confidentiality agreement and a letter stating:
We are hopeful that you will do your part to
ensure compliance with this Agreement by
Mr. Kindt. To the extent that we learn that Mr.
Kindt, while employed by CTI, has directly or
indirectly solicited business from any Trango
customer, has used any of Trango’s Confidential Information, or has violated in any other
ways his Agreement with Trango, we will
seek all available legal remedies against CTI
and Mr. Kindt.
CTI then called Seaman to discuss Kindt. Seaman
gave the company the impression that it was “better off
October 27, 2014
Tilman
(3)AB 2053 requires California employers with 50 or more employees to provide abusive conduct
training every two years. New
supervisors must receive training
within six months of promotion
or hire.
The authors can be reached at Renne
Sloan Holtzman Sakai LLP in San Francisco, [email protected] and etilman@
rshslaw.com. D
just not hiring him . . . because [Trango] will take exception to this if you do.” On December 22, CTI terminated Kindt because it was concerned about becoming
involved in litigation with Trango.
Employee sues for unlawful
nonsolicitation agreement and more
In October 2010, Kindt filed a lawsuit against
Trango. He alleged that the offer letter entitled him
to an additional six months’ employment or pay,
Trango owed him waiting-time penalties for not delivering his final paycheck on his last day of work, it
attempted to enforce a nonexistent and unlawful noncompete agreement, and it wrongfully interfered with
his employment at CTI.
During trial, the court ruled the confidentiality
agreement was valid. The jury returned a verdict in
Trango’s favor on all of Kindt’s legal claims, and the
court denied relief on his equitable claims based primarily on the jury’s findings. Kindt requested a new trial.
The court granted his request on all his legal claims
based on alleged jury misconduct, but it refused a new
trial on his equitable claims decided by the court. (Legal
claims are generally for monetary damages. When legal
remedies are inadequate, an employee may file equitable
claims seeking specific relief such as an injunction or declaratory relief.) Both parties appealed.
Employee challenges
nonsolicitation provisions
Kindt argued that the trial court erred by denying
his request for new trial on his equitable claims. He challenged the court’s determination that the confidentiality
agreement was valid. According to Kindt, the following
7