Jottings By An Employer's Lawyer

Monday, November 17, 2008

Bullying in the Air?

I hadn't heard or seen much about bullying in the workplace recently, but then a week ago two of my fellow bloggers both had posts: George Lenard wrote Is Workplace Bullying Cause for Concern? and Eric Welter has this post, Are Common Law Remedies an Alternative to Anti-Bullying Laws?

Both were sparked by other articles, George by a story based on the Indiana case involving a heart surgeon, see my post on the case here, and Eric on a legal article from the Bench & Bar magazine, a publication of the Minnesota State Bar Association.

I am not sure there is really any new spirit behind the movement for bullying legislation, other than the general pro-employee boost of the election, and the draft legislation has still not made noticeable headway in any legislature. Still, it is clear that this is a subject that makes for good press and the proponents of legislation to deal with it continue to plug away.

(On a related note, the author of the proposed draft legislation, Professor David Yamada, has a new law review article urging a new philosophical approach to employment law in the U.S. , moving from what he calls a "markets and management" approach to a "dignitarian" one. See the link to the article at Yamada on Human Dignity at the Workplace Prof Blog.)

Like all things in employment law, the longer it is talked about, the more it becomes a familiar concept and at some point there comes a tipping point where it begins gaining real traction. The difficulty courts will have in controlling claims that would arguably fall within such a nebulous standard would really be unprecedented. Employers should be making that case at every opportunity.


I am ready for that tipping point! Workplace bullying is a very serious health and economic issue. Laws will prevent this violence the same way it does other violent crimes. There will still be some but imagine how many shootings and rapes there would be if they were legal. Please sign the Anti-bullying Healthy Workplace Bill petition . Making bullies pay for the damage they do is the only way to stop them. Thank you!
With no slight intended to victims/targets of workplace bullying, this topic revives itself on syndicated news sources every seven to ten months.

For a decade, the story that 12 (or 11 or 13) states are considering (and that none have passed) workplace bullying laws appears, like some reoccurring comet, each time making a nod to Drs. Namie and their institute.

At an announcement of one of Prof. Yamada's previous articles, I queried: "What do you think will happen first: a workplace bullying law, or the US out of Iraq?" -- still a valid question.

It'd be nice if nice could be legally enforced; the suggestion that the real cases would sort themselves out by having experts explain it to juries is problematic.

I don't think repetition of the topic suggests its inevitability at gaining traction as much as its zombie-like refusal to remain in the grave.
We're not trying to legally enforce nice, we're trying to illegalize torture and terrorism in the workplace.
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