Critique of the Healthy Workplace Bill
Academic/Scholarly
Tort Reform
Too Business Friendly

THERE OUGHTA BE A LAW

David Yamada, a professor at Suffolk University Law School in Boston, MA, wrote the Healthy Workplace Billwhich is currently pending in about 9 states. In keeping with our mission to encourage open discussion about ways to regulate workplace bullying, we are posting critique by scholars and others for educational and informational purposes in order to provide a vital and much needed resource for legislators and journalists interested in discussion about all options available to deal with bullying. For instance, could the U.S. follow the lead of several other countries and use OSHA as a regulatory agency [ more on this on page: OSHA & Other Regulatory Options ] Canada adapted existing Workplace Violence legislation to include bullying for several provinces (Bill 168). Here in America, many States enacted Workplace Violence legislation in the late 90's and early 00's. This was prompted by the intense media attention on the sharp rise of tragic "going postal" shootings at that time and the FBI recognized bullying as worker-on-worker violence (type 3). In 2010, Connecticut denied passage of a bill to cover bullying because it was argued that the Connecticut workplace violence legislation already covered bullying behavior. In 2011, the Ventura County Grand Jury required the County offices to address bullying among their employees. Ventura County chose to amend the workplace violence policies and training they already had in place. Clearly this could be a cost effective solution for many of the public employers in the U.S. to adapt.

Other arguments include criticism that: the HWB would hold American workers to a stricter standard than other countries; that the proposed legislation is too business friendly; that the bill is more concerned with Tort reform than victims; and that it does not have any method of holding businesses accountable. It is hoped that current Tort laws will provide better recourse for victims now that the 2008 RAESS case has opened the door for lawsuits (IIED, NIED). If passed, $25K cap for mental duress built into the legislation is less than one tenth of the amount a judgement upheld for the plaintiff in the RAESS case.

Feel free to use the "discussion" tab on this page to share your feelings. Yamada has written numerous scholarly articles in support of his proposed bill and is heading the effort to pass this legislation in his home state. The legislation is copyrighted and his arguments supporting his bill can easily be found in numerous mainstream media reports, on Yamada's own blog, or on the Healthy Workplace Campaign website - an incorporated legislative campaign headed by the Workplace Bullying Institute (WBI). [ See Businessweek article Office Bullies: The Big Business of Battling Them] Yamada has been a member of the Board of Directors of the WBI for several years and, as recently as 2010, was the Board's Vice President. The WBI's effort to pass the HWB has spanned 10 years and has brought much needed publicity to this topic.

CRITIQUE OF THE HEALTHY WORKPLACE BILL


At issue are the major hurdles that victims would need to overcome in order to be protected under the HWB. Harris v.Forklift Systems, Inc stated that: 'Title VII bars conduct that would seriously affect a reasonable person's psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious."'

Many of the advocates lobbying for the HWB are under the false impression that "malice" is a given and not difficult to prove. And, that once a bill is passed it is easily amended. Actually amending a bill normally requires the same process that enacting one did. You need to find a legislator and get it passed in both houses. While many feel that discrimination claims naturally include malice - status blind cases may well have a tougher time. "Proof of actual malice requires more than a showing of mere hostility. See King v. Driscoll, 638 N.E.2d 488, 495 (Mass. 1994) (explaining that "personal dislike will not warrant an inference of the requisite ill will"). For one thing, the plaintiff must prove that malice was the controlling factor in the supervisor's interference. Alba v. Sampson, 690 N.E.2d 1240, 1243 (Mass. App. Ct. 1998). For another thing, "[a]ny reasonable inference of malice must . . . be based on probabilities rather than possibilities." Gram, 429 N.E.2d at 24-25 (citation omitted). Finally, such an inference requires an affirmative showing that the actions taken by the supervisor were not derived from a desire to advance the employer's legitimate business interests. Boothby v. Texon, Inc., 608 N.E.2d 1028, 1040 (Mass. 1993); Alba, 690 N.E.2d at 1243." [ original article]


Patricia G. Barnesargues that the bill is “unnecessarily restrictive” and “would require American workers who are targets of workplace bullying to jump high hurdles that do not exist for workers in other countries. There is no valid reason to set the bar lower for American workers.” Barnes’ bio lists her as an appellate judge, a licensed attorney (admitted in PA only), a Westlaw Round Table Group “Employee Relations” expert witness, and a legal author with experience in both domestic violence and employment law and does trainings, consultations and speaking engagements on the topic.

"The Healthy Workplace Bill limits damages for emotional distress to $25,000 (with no punitive damages) in cases where an employer is found to be liable but the target does not suffer an adverse employment action, such as being demoted or fired. So only targets who are, for example, demoted or fired are eligible for damages in excess of $25,000 - if they can prove malice and provide tangible proof of psychological and/or physical harm. (None of these requirements exist for targets of a hostile workplace environment in race and sex discrimination cases.)

“One idea might be federal legislation to amend Title VII, the Civil Rights Act of 1964, to permit any worker to sue if subjected to a hostile workplace environment,” Barnes writes. ”Another idea is to approach the problem as an important public health issue – which it is – and adopt health and safety regulations to protect employees on that basis. Finally, one might think local – push cities and towns to adopt legislation to protect employees from workplace abuse.”
Or, the Healthy Workplace Bill could be amended into something stronger by adding (or deleting) language in the bill

I. Current Tort Law & IIED, NIED Lawsuits Provides Stronger Recourse For Victims


A) Kaplan Legal Review Article: HELP IS ON THE WAY
discusses the impact of the 2008 RAESS case and possible legal remedies for workers already in place go to page )
Below are some useful links to articles (the full Carbo article is attached here )

B) "THE HEALTHY WORKPLACE BILL [by Patricia G. Barnes]
This proposed bill was drafted by Professor David C. Yamada of Suffolk University Law School in Boston, MA, and is supported by the Workplace Bullying Institute at a web site called, //The Healthy Workplace Bill//. Without detracting from the fine work of Prof. Yamada and the WBI, it is unfortunate that the Healthy Workplace Bill is somewhat anemic compared to legislation adopted elsewhere on workplace bullying.
For one thing, the proposed Healthy Workplace Bill would require a victim to provide evidence of malicious intent to bully. Malice is defined in the proposed bill as “the desire to cause pain, injury, or distress to another.” Part of the “art” of workplace bullying is subtlety. The target may be the victim of a thousand pin pricks that add up to a mortal wound. The bully acts covertly and uses manipulation to debilitate the target. Bullies are notorious for showing one face to the target and another to his/her supervisor. It would be very difficult to prove malice in these situations and one can only wonder why this is a requirement in the proposed Healthy Workplace Bill.
The proposed bill also would require the target to provide proof of tangible psychological or physical harm to the plaintiff. This would pose a burden for targets who don’t have health care coverage or the funds or the cultural disposition to see a therapist. How can they prove tangible psychological harm? Also, overwhelming research shows that bullying causes stress that may contribute to physical harm that only becomes apparent many years later – such as heart disease. This should be taken into account.
Finally, the U.S. Supreme Court says a plaintiff in a Title VII civil rights harassment case does not have to prove concrete psychological harm. “Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.” Harris v. Forklift System, 510 U.S. 17 (1993).

According to Katherine Lippel, an international authority on workplace abuse, laws in other countries do not have the above restrictions, which would make it far more difficult for a plaintiff to prevail in litigation. Ms. Lippel is the Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada. Here’s what Ms. Lippel has to say about The Healthy Workplace Bill: “It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill.”

Furthermore, the wording of Section 7(b) limits damages for emotional distress to $25,000 (with no punitive damages) in cases where an employer is found to be liable but the target does not suffer an adverse employment action such as termination. This affects targets of bullying who are not demoted or fired. But why? There is at least one highly publicized case where an alleged target of workplace bullying committed suicide because he thought that he was going to be demoted or fired. This cap is so low that it could fail to adequately compensate a target of severe bullying and would not serve as a useful deterrent to employers to halt workplace bullying.
Possibly the limiting language of the proposed Healthy Workplace Bill reflects a concern by its drafters that employers will fight workplace anti-bullying legislation unless it is sufficiently weak. My feeling is that American workers deserve at least the same level of protection as other workers around the world. [This article excerpt is reprinted with permission from the blog: When The Abuser Goes To Work: a legal blog on workplace bullying and abuse.]


C) HEALTHY WORKPLACE BILL ANEMIC? (By Patricia Barnes)
Clearly, the Workplace Bullying Institute and Dr. David Yamada have been instrumental in the mounting efforts to pass a state workplace anti-bullying bill. However, the proposed Healthy Workplace Bill as drafted by Dr. Yamada and supported by the Workplace Bullying Institute is unnecessarily restrictive as outlined in the story below. It would require American workers who are targets of workplace bullying to jump high hurdles that do not exist for workers in other countries. There is no valid reason to set the bar lower for American workers. – PGB

Is the proposed Healthy Workplace Bill, which has been touted as model legislation to combat workplace bullying in the United States, as healthy as it should be for American workers?

This question was raised in a special issue of Comparative Labor Law & Policy Journal entitled, The Law of Workplace Bullying: An International Overview, Volume 32, Number 1, Fall 2010. The Journal is a publication of the University of Illinois College of Law and The International Society for Labor Law and Social Security.[1]

“It is of note that efforts to have legislation adopted in the Unites States seem to raise the bar far higher than would be acceptable in any of the other countries studied here,” says Professor Katherine Lippel, the editor of the issue and Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada,

The proposed Healthy Workplace Bill was drafted by Professor David Yamada of Suffolk University, Boston, MA, founder of the New Workplace Institute, and is supported by the Workplace Bullying Institute founded by Gary and Ruth Namie.

Ms. Lippel said the proposed Healthy Workplace Bill contains restrictive requirements not found in other such laws around the world. Specifically, she cites its requirement that the Plaintiff show malicious intent to bully and provide evidence that he or she suffered tangible harm.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of malicious intent:
“The requirement of malicious intention is of particular concern, and is not a requirement in the other legislation studied in this issue … Most legislation does not require evidence of the intention of the perpetrator of harassment (see for instance the interpretation and application of the legislation in France and Québec, and the Code of practice in Spain), and while malicious intent may lead to an increased award in Germany, evidence of intent is not required in the application of remedies provided for either in contract or tort liability contexts.”

Here’s what Ms. Lippel has to say about the proposed requirement of proof of tangible harm:
“Similarly, the proposed Healthy Worker Bill imposes an evidentiary requirement that has been critiqued as being “an over-high standard of severity,”… requiring evidence of tangible harm to the plaintiff … It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill.”

Ms. Lippel prefaces her remarks with the admonition that, “The actual content of the legislation on workplace bullying, if there is to be legislation, requires reflection.”

The issue may be available for perusal at your local law library. It can be found online at Lexis/Nexis, Westlaw, and HeinOnline. It is available for purchase ($10) at the journal’s web site: http://www.law.uiuc.edu/publications/cll&pj/contact.html
http://abusergoestowork.com/2010/12/30/proposed-workplace-bullying-overly-restrictive/

II. TOO BUSINESS FRIENDLY


A) [quoted above] Strengthening the Healthy Workplace Act—Lessons from Title VII and IIED Litigation and Stories of Targets' Experiences. Authors: Carbo, Jerry Source: Journal of Workplace Rights, 2009, Vol. 14 Issue 1, p97-120, 24p

...Current legislative, common-law, and administrative remedies in the United States do little to address the problem. Yamada has introduced the Healthy Workplace Bill as a proposed solution to this problem, and 13 states have at least brought this bill to the stage of a legislative proposal. However, the bill as currently written suffers from many of the same problems as the current harassment laws and intentional infliction of emotional distress (IIED) laws in the United States. This bill sets too high a standard in terms of the bully's conduct, the harm to the target, and the reporting requirement placed on the target. Further, the requirement of showing malice and the focus on repetitive acts will leave many targets of workplace bullying with no legal recourse. In order to fully address the problem of workplace bullying... [ABSTRACT FROM AUTHOR]

B) Spring 2009 New England School of Law: New England Law Review
NOTE: THE HEALTHY WORKPLACE BILL: A PROPOSAL TO ADDRESS WORKPLACE BULLYING IN MASSACHUSETTS
Joanna Canty*, * Candidate for Juris Doctor, New England School of Law (2009). B.A., English, Boston College (1997).

“…Yamada attempted to curtail these criticisms and minimize frivolous litigation by requiring a showing of malice and tangible harm. n166 He anticipated that these requirements would provide a legal remedy to victims of severe bullying but would prevent victims of more moderate bullying - and employees asserting frivolous claims - from successfully prosecuting an abusive work environment claim. n167 He suggests that because of the inclusion of these elements, the Bill unfortunately, but necessarily, sacrifices the legitimate claims of insidious, hard-to-prove bullying in the name of protecting the judicial system from an onslaught of frivolous litigation. n168

Another criticism of the Bill is that it is actually ineffective and does not provide targeted employees with a meaningful opportunity to recover. n169 Lawsuits are expensive, and many employees - particularly ones who have either quit their jobs or been terminated as a direct result of [*514] workplace bullying - simply cannot afford to pursue a claim. n170 Moreover, with a potential cap on damages, many employees could pay more to bring a suit than they could recover. n171 Critics argue that providing for agency oversight of such claims rather than an automatic civil action might reduce costs and more effectively compensate victims of workplace bullying. n172

Yamada actually considered but deliberately chose not to involve an administrative agency in his plan for adjudicating abusive work environment claims and, surprisingly, views the potential high cost of litigation as a positive. n173 His main reason for not involving an agency was to discourage the filing of weak or frivolous claims. n174 An agency would provide representation to litigants who cannot afford an attorney, which could potentially allow for employees with weak claims to file complaints. n175
Additionally, Yamada anticipated that because of the limitation on damages, the plaintiffs' bar would weed out weak and frivolous claims because attorneys would refuse to take cases where the chance for recovery was slim; this screening process would not occur in an agency setting. n176 While Yamada recognized that this would result in some victims with viable claims being unable to seek legal redress, he opined that such a sacrifice was necessary to limit the number of claims brought under the statute. n177 Additionally, proponents of the Bill view the lack of agency involvement as a selling point, noting that passing the Bill will not burden the state with additional regulatory responsibilities or require additional funding. n178…”


In 2009 Illinois passed the HWB was defeated. However, a study bill passed mandating the creation of an 8 member task force to study workplace bullying in that state and make recommendations on how to proceed. The task force was required to file a report in December 2010. The WBI legislative campaign chose not advocate for follow-up on the study bill and instead re-introduced the HWB. The Illinois Municipal League published an update on the lack of progress of the study bill on their website:

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  1. ^ THE LAW OF WORKPLACE BULLYING: AN INTERNATIONAL OVERVIEW, Katherine Lippel http://www.proyectoaraucaria.cl/documentos/20101126105135Lippel.pdf
    "...Most legislation does not require evidence of the intention of the perpetrator of harassment (see for instance the interpretation and application of the legislation in France and Quebec, and the Code of practice in Spain), and while malicious intent may lead to an increased award in Germany, evidence of intent is not required in the application of remedies provided for either in contract or tort liability contexts. It is of note that efforts to have legislation adopted in the Unites States seem to raise the bar far higher than would be acceptable in any of the other countries studied here. The requirement of malicious intention is of particular concern, and is not a requirement in the other legislation studied in this issue. Similarly, the proposed Healthy Worker Bill imposes an evidentiary requirement that has been critiqued as being "an over-high standard of severity,''6 requiring evidence of tangible harm to the plaintiff. It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill."