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Employment LAw of an employee for any abusive conduct in the workplace.” 10 As such, if a public entity such as a town or county in Tennessee adopts such a policy, the entity will be immune from recourse, but the target may sue the alleged individual employee who engaged in bullying as per the definition. In 2015, TACIR published such a model policy titled “Model Abusive Conduct Prevention Policy Pursuant to Public Chapter 997, the Healthy Workplace Act” 11 Both California and Utah have passed legislation requiring training against bullying in certain workplaces. In California, as of January 1, 2015, the legislature mandated that supervisors must have training on “Abusive Conduct” if the supervisor works for an employer with 50 or more employees. This training must occur along with anti-sexual harassment training within six months of hire and, at least, for two hours every two years.12 The law, AB2053, defines “abusive conduct as that which a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests.”13 The law does not include any statutory recourse for the target of bullying and is controversial for its broad definition of “abusive conduct.” Utah also passed legislation on workplace bullying which took effect on July 15, 2015. This legislation, UTHA HB 216, requires state agencies to train supervisors and employees on how to prevent abusive conduct. The biannual training must include “the definition of abusive conduct, its ramifications, resources available and the employer’s grievance process.”14 In this case, the Utah legislature adopted the definition of “abusive conduct” set forth by the Workplace Bullying Institute. Abusive conduct means verbal, nonverbal or physical conduct of an employee to another employee that, based on its severity, nature, and frequency of occurrence, a reasonable person would determine is intended to cause intimidation, humiliation, or unwarranted distress or results in substantial physical or psychological harm as a result of intimidation, humiliation or unwarranted distress; or exploits an employee’s known physical or psychological disability.15 As noted above, other states have not been able to pass such legislation. For example, in 2014, Puerto Rico’s Governor Alejandro Garcia Padilla vetoed such legislation that would have applied to both public and private sector employees stating that the definition of workplace bullying is “too vague.”16 III. The Cost of Bullying In 2007, a survey by Zogby International found that approximately 45% of those bullied in the workplace suffered stress-related health problems, including, but not limited to, cardiovascular problems, reduced self-esteem, work withdrawal and sickness absence, increased depression/self-blame and increased financial pressure due to absence.17 A related survey found that workplace bullying is hurting “more employees than sexual harassment – causing more job stress, less job commitment and higher levels of anxiety” and this may well be due to the fact that there is no real recourse or policy against the same in most workplaces. 18 Employers who employ bullies, and look the other way because the bullies may be highly productive or they simply don’t want to deal with the problem, tend to suffer losses in three principal ways: (1) TURNOVER: Replacing valuable employees that leave as a result of being bullied and paying the cost of training new employees; (2) PRODUCTIVITY PROBLEMS: Work effort being displaced as staff cope with bullying incidents (i.e., effort being directed away from work productivity and towards coping), increased mistakes and distraction; (3) FINANCIAL LOSSES: Costs associated with investigations of ill treatment, potential legal sanctions, employee turnover, workplace mistakes and loss of company reputation. Additionally, not rooting out the problem employees leads to repetitive cycles and the bully will repeat the behavior as long as he or she can get away with it. Workplaces that retain the employee have, inter alia, high turnover rates, less return per employee and increased absenteeism. Many businesses are now requiring Continued on page 20 16 Birmingham Bar Association


Bulletin Winter 2016
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