Bullying Is in the News, Is it in the Workplace?

Friday, November 15, 2013 | 0

The legislative process has begun in Florida, with members of the House and Senate filing bills that they hope will draw consideration next spring. Last year, a pair of bills were sponsored, each titled the "Safe Work Environment Act." The Senate and House versions were not identical, but each would have created a protection for some portion of Florida employees: protection from bullying in the workplace.

I became curious about these 2013 bills (HB149 and SB308) this week as I read about Jonathan Martin, a member of the Miami Dolphins football team. Mr. Martin has accused another Dolphins player, Richie Incognito, of abuse and bullying. The Dolphins have suspended Incognito while an investigation is ongoing into his alleged behavior, and the alleged victim has left the Dolphins, perhaps to escape the alleged behavior. The Dolphins organization says Martin is absent due to illness.

There is much in the news now about whether Martin will sue for the alleged harassment. The prognosticators in the press are discussing whether either Incognito or the Miami Dolphins might be held responsible for the intentional infliction of emotional distress. They note in many press outlets that this might be a difficult case against the Dolphins, particularly if the team has a policy against actions such as those alleged against Incognito.

The "Safe Work Environment Act" in Florida HB 149 is the broader of the two bills. The Senate version only protects workers at state agencies, counties, municipalities and other governments within the state. The House version would apply to all employers. Both bills are backed by "The Healthy Workplace Campaign." According to their website, 25 states have introduced the bill since 2003, with no state actually passing it.

The Campaign asserts that workplace bullying includes verbal abuse, "threatening, humiliating or intimidating" behavior and interference with work activities. They claim that it's "a problem that has invaded the life of 37% of adult Americans," leading to a host of medical complaints and problems, including "hypertension, auto-immune disorders, depression, anxiety [and] PTSD." HB 149 finds that the problem is more widespread, stating the figure is "between 37 percent and 59 percent."

HB 149 concedes that unless such bullying is shown to be connected to "race, color, sex, national origin or age," the employee is "unlikely to be protected by law against such mistreatment." Finding that current laws are thus inadequate to protect against this bullying, the bill creates liability for the employer. This is called "vicarious" liability, which refers to liability for the actions of someone else. In context, this bill would make the Miami Dolphins liable to someone like Mr. Martin, for the actions of someone like Mr. Incognito, if those alleged actions were proven to have occurred.

In creating the vicarious liability of the employer, the bill does not relieve the perpetrator (in these allegations Mr. Incognito); the perpetrator is also liable. When not dealing with professionals earning hundreds of thousands of dollars a year, however, the employer liability is the real effect of this proposed law.

Bullying has likely been around for the entire history of human existence. When we hear about bullying, we often envision the over-sized kid on the playground that threatens or beats-up the smaller kid. As a kid, I thought this was just something that guys did. Increasingly, however, the news brings us stories that belie that perception. Stories of bullying by girls, of bullying in cyberspace, of a far greater variety that we perhaps expected or understood.

When I was a kid, the football players were often the ones doing the bullying. Often, they were the "big kids" on the playground. The Martin allegations tell us that it may be (they are allegations at this stage) that the big kids not only bully the smaller ones, but actually bully each other.

This story will receive much attention in coming weeks and months as the National Football League investigates. As the legislative session begins in the spring, it will be curious to see if any states take legislative action on bullying, in the workplace, schools or elsewhere. As we wait to see, I wonder whether bullying occurs in other workplaces, like your workplace?

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.