When Policies Don’t Work
I would give anything to have the U.S. replicate the broad national investigation of abuse in our work cultures that Australia is currently undergoing. [sign our petition] At least we can watch from halfway around the world and learn from information being presented. Because, one of the issues being discussed is that policies in the workplace need certain components if they are going to be effective. Unfortunately, here in America the most popular template for legislation, the Healthy Workplace Bill, doesn’t even require employers to put policies in place much less dictate that the point person for employees to complain to should be separate from HR. Hopefully that will change and the bill will be amended by some smart legislator before it passes. Continue reading
A recent survey conducted by the Society for Human Resource Management (SHRM) polled HR personnel about workplace bullying and how they respond to complaints. It’s clear that HR is aware of the problem. In fact, the vast majority of those polled believe it is the responsibility of HR to deal with it (only 1% feel there should be a special workplace bullying/workplace violence committee) and please keep in mind that about 27% of those taking part have been the targets of bullying themselves. Here are the results of the SHRM survey — note: respondents were allowed to choose more than one option: Continue reading
(Personal comments from an online petition created by a coalition fighting workplace bullying that asks the Obama Administration to enact uniform national legislation or regulation in response to the devastating impact of workplace bullying. Each signature generates an email sent directly to President Obama and Secretary of State, Hilda Solis.)
Tragically this is only a small sampling of the stories woven among thousands and thousands of signatures. (Some comments are excerpted)
#6936 ah yes. i remember that boss i had who screamed at me that i couldn’t quit (quite intimidating about it; i was afraid she was going to hit me), and who threw the telephone across the room and kicked animals. fun stuff. good times. y’know
This year our most popular posts continue to cover a wide range of topics and issues related to workplace bullying. We continue to focus on our mission to critique and offer new voices and alternatives to the current dialogue. Two 2010 posts ( about Mediation & OSHA ) are still extremely popular. Here’s a recap for 2011: Continue reading
by Norm Keith (reprinted with permission)
The first important decision arising from the Bill 168 amendments to Ontario’s Occupational Health and Safety Act (OHSA) has determined verbal threats of workplace violence constitute violence under the new law, which came into force on June 15, 2010. Continue reading
Here’s what Abby L. Ferber had to say in this excerpt of her Huffington Post article about the issue:
So why do women most often bully other women? Because they are rarely in positions of power over men. According to the article [NY Times, Backlash: Women Bullying Women at Work:
“After five decades of striving for equality, women make up more than 50 percent of management, professional and related occupations, says Catalyst, the nonprofit research group. And yet, its 2008 census found, only 15.7 percent of Fortune 500 officers and 15.2 percent of directors were women.”
In addition, women are more likely to work in careers and workplaces that are primarily populated by other women. Men, on the other hand, wield power in the workplace over both women and other men.
Instead of examining the larger dynamics of power at work here, the article focuses on women as a group, asking why they bully other women.
We are left with numerous problematic conclusions:
Women’s relationships with each other are problematic and women need to learn to better support each other.
Women are the problem themselves, and they are becoming too much like men as they move into positions of power.
Bullying itself is not a gendered phenomenon, men bully men and women bully women, so we are all affected by it.
Bullying by men is natural, and not in need of examination. We should expect that kind of behavior from men.
Looking at the exact same data, however, informed by an understanding of how the dynamics of gender and power operate, a very different story can be told.
The reality is that:
Bullying is about power, and people bully those they have power over.
Bullying increases when people feel their power threatened.
Our unequal gender system contributes to the problem of bullying because it reinforces the idea that some people should naturally have more power than others; that men are by nature more aggressive, and women should be more nurturing and supportive.
And bullying in the workplace contributes to economic inequality between men and women. As this study makes clear, bullying is a very serious problem, with real consequences: 40% of the time, the target ends up quitting her job (remember, most targets are women). So bullying is a tool to maintain inequality.
The way in which the story of the data is told by the New York Times ends up hiding the real problems and blaming the victims. If our analyses are not informed by research and analyses of gender and power dynamics, we end up contributing to the problem, rather than developing real solutions.
Soon legislators in several states will be reintroducing “abusive work environment” legislation that has carried over for another year, many of them copied verbatim from the arguably business friendly Healthy Workplace Bill template (HWB). For victims of bully bosses passage represents vindication and dreams of having their day in court. But, just how realistic is that dream?
It might help to look at the outcome of workers compensation claims for mental stress. Jack D. Kovac, a workers compensation attorney in New Jersey, points out in his article, Stress Claims As A Remedy For Workplace Bullying, that “…under workers’ compensation law, benefits are provided for work-related injuries. If the bullying does not result in an injury requiring medical treatment, though, there is no remedy…”
If/when the HWB passes it has built into it this same requirement. In addition, the HWB will require victims to find a way over one more hurdle. Besides injury, victims will have to prove that their boss acted with malice and intentionally targeted them. Only then will victims be able to meet their bully in a courtroom.
How will courts determine issues about pre-existing conditions and individual sensitivity to stress? Below Kovac outlines the way workers comp decisions lean on these issues in NJ: (Additional information on filing NJ workers comp claims is included in the full article):
Three Necessary Elements of a Stress Claim
1. Proof of objectively stressful work conditions which the worker reacts to in a stressful manner.
In Goyden v. State Judiciary, 256 N.J. Super 438 (App. Div. (1991), aff’d. 128 N.J. 54 (1992), the Court found that there was a mere subjectively perceived conflict with a supervisor which did not rise to the level of a compensable psychiatric claim. Goyden alleged that he was subjected to vindictive management procedures, particularly a biased and defamatory work evaluation that resulted in major depressive disorder, which compelled him to retire. The court, however, found that the criticism was merited. Goyden also alleged he was stressed by uncontrollable backlog and staff shortages, but the court found that these were not the cause of his stress. The Court noted, though, that work conditions such as backlog and staff shortages are subject to objective verification and thus could form a basis for a stress claim. Id. at 456.
Williams v. Western Electric Company, 178 N.J. Super. 571 (App. Div. 1981). makes clear that an employee’s subjective reaction is not to be disregarded, though it cannot be the sole ingredient of the formula for compensation. Williams also teaches that objectively verifiable work conditions need not be outside of the ordinary work stresses: “The requirements of unusual strain or stress as a causative factor was rejected [. . . ] and we, as an intermediate court, cannot revive that approach.” Id. at 106. Thus Williams specifically rejected the Wisconsin rule, which requires proof that the psychiatric injury must result from “greater dimensions than the day-to-day mental stress and tensions which all employees must experience.” Id.
Walck v. Johns Manville, 56 NJ 522 (1970), involved a reaction to mental stress resulting in a heart attack. The petitioner feared he may lose his job, but this fear was unfounded. After the retirement of his long-time supervisor, the petitioner claimed, he became nervous, tense, and insecure about his work performance and about his ability to hold his job under his new supervisor. But the court found that his anxiety was purely subjective and based on an unfounded imaginary worry as opposed to a reasonable basis in fact. Therefore the court found that where the employee is a worrier who becomes unnecessarily nervous about losing his job and this worry results in a heart attack, it is not compensable.
In Williams v. Western Electric, supra, the petitioner alleged that his work on an assembly aggravated his underlying schizophrenia. However the court found that he had a purely subjective reaction to his job because of his schizophrenia: his diseased mind reacted to merely normal work demands. Therefore compensation benefits were denied.
2. Work conditions peculiar to the workplace (not just common to everyone). Fiore v. Consolidated Freightway, 140 N.J. 452, 468-470 (1994) illustrates “peculiar to the workplace”:
If an employee contracted pneumonia as a result of working in a freezer as a packer, the condition would be a compensable occupational disease because it would be due to a cause which is peculiar to the employment. If the same employee contracted pneumonia as a result of incidental exposure to a fellow employee with pneumonia, however, this might not be compensable because the condition may not be due to a condition characteristic or peculiar to the employment.
Goyden held that merited criticism by a supervisor is common to all occupations and is therefore not peculiar to any particular trade or occupation. Id. at 451. In Williams, the petitioner had preexisting schizophrenia and evidence indicated he was equally irritated by things and people on and off the job. The facts in psychiatric claims brought before the Division must be distinguished from Goyden and Williams.
Cairnes v. City of East Orange held that a layoff or unemployment is not a risk arising out of employment but rather out of the economy and economic forces. A layoff notice is a threat that confronts every worker and is therefore not stress peculiar to the workplace.
3. Objective medical evidence showing that the work conditions were the material cause of the psychiatric disability. Professional analysis in psychiatric claims, as opposed to physical claims, depends upon “analysis of the subjective statement of the patient.” Saunderlin v. E.I. Dupont Company, 102 N.J. 402, 412 (1986). Though subjective evidence requires analysis beyond mere subjective statements and will not be present when the physician simply “parrots” the patient’s complaints, objective evidence of a physical manifestation is not required in psychiatric claims. Id. at 412, 416. The distinction between objective and subjective “is not between physical and mental (or body and mind) but between independent professional analysis and the bare statement of the patient.” Interposition of a professional judgment between a subjective statement and an award of disability does not involve exclusion of the subjective statement: any medical examination “must begin with the [patient's] subjective statement.” In physical disability claims, medical analysis often goes beyond subjective statements by virtue of clinical and laboratory tests. But in psychiatric claims, diagnostic criteria include descriptions of states of mind “discoverable only through” the subjective statement. Id. at 412-414. Under Saunderlin, Reasoned analysis of the subjective statement of a psychiatric patient is objective within the meaning of N.J.S.A. 34:15-36. Id. at 313-314. But where petitioners saw their psychiatrists only once upon recommendation of their attorneys and the psychiatric reports merely dressed the complaints in “psychiatric nomenclature,” the claims for psychiatric disability were dismissed. Id. at 418-419.
Specific Event versus Occupational Stress
In Prettyman v. State of New Jersey, 298 N.J. Super 580, 594 (App. Div. 1997), the court stated that Walck and Williams do not apply when an alleged psychiatric disability is caused by a specific event rather than a stressful work environment. Wrongly suspected of stealing from a coworker, petitioner was removed from work by the State Police and taken to a station for aggressive questioning. The court applied the “but for” test to determine that the petitioner’s injuries arose out of her employment: but for the fact that she came to be suspected of theft while carrying out her usual duties, she would not have been taken for questioning a few days later. Respondent’s contention, based on Cairns, that police investigations of theft are as normal to the workplace as layoff notices, was rejected along with the argument that the interrogation was a separate event that did not arise “during the course of employment.” Among other things, the court’s distinction in Prettyman between a specific event and a stressful environment suggests that a worker’s predisposition cannot be used to bar specific event claims. Hence the court noted that the “employer takes the employee as the employer finds the employee, with all of the pre-existing diseases and infirmiti[es].” Evidence of the petitioner’s emotional and excitable nature, precluded by the trial judge, was not deemed significant to respondent’s defense. Id. at 592-595.
Limits to psychiatric stress claims apply to fact-specific circumstances and, in some cases such as Cairns, are based on considerations of public policy. These limits, however, do not apply to psychiatric injuries arising from accidents or occupational diseases that have caused other injuries, such as, for example, a machinist depressed after losing an arm or a construction worker depressed due to occupational pulmonary disease. A psychiatric claim in these latter instances would be limited only by Saunderlin, supra, which requires reasoned, objective, professional psychiatric analysis of the patient’s state of mind.
Burden of Proof in Occupational Claims
In Lindquist v. City of Jersey City Fire Department, 175 N.J. 244 (2003), a firefighter with history of smoking cigarettes established that his exposure to smoke from fires contributed in a material way to his lung disease. Lindquist clarifies the standard applicable to all occupational claims in a way favorable to petitioners.
Standard of Proof: “It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee’s disabling injury as a matter of medical fact. Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.”
Bargain Theory: The Workers’ Compensation Act “involved a historic trade-off whereby employees relinquished their rights to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries . . . ” At the ” heart of this ‘original bargain . . . . is the notion that the burden of proof on claimants would be easier . . . under workers’ compensation laws than under common law.”
As this standard applies to occupational claims in general, it would govern occupational stress claims and the related sub-category of occupational bullying claims.
3 Types of Workers’ Compensation Benefits
1. Medical Treatment (Controlled by the Employer). Employee cannot go to his own doctor without getting prior authorization from the carrier—risks personal responsibility for payment in some instances. But the employer’s right to control treatment may be lost if the treatment offered is ineffective or unreasonable. Benson v. Coca Cola, 115 N.J. Super 585 (Law. Div. 1971). See also N.J.S.A. 34: 15-15 providing that if the employer fails to provide treatment the employee may obtain it but the employee must request the treatment. A letter should be sent to the comp carrier or employer’s attorney demanding adequate treatment.
Cure and Relieve. N.J.S.A. 34:15-15 requires an employer to furnish treatment “necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the [worker's] injured member or organ where such restoration is possible.” But Hanrahan v. Township of Sparta, 284 N.J. Super 427, 436 (App. Div. 1995), held that the phrase “cure and relieve” is not conjunctive: treatment must be provided as long as competent medical testimony establishes treatment is necessary to either cure the worker or relieve the worker of symptoms.
2. Temporary Disability Benefits (“TDB”). Paid weekly (for up to 400 weeks or 7.7 years) at 70% of average weekly wages up to a maximum in 2008 of $742 (SAWW 989.23 x .75). 34:15-12(b) and 34:15-38. Paid until the worker may resume her job or until MMI (is as far restored as the permanent character of the injuries will permit), whichever occurs first. Monaco v. Albert Maund, 17 N.J. Super. 425, 431 (App. Div. 1952).
Restricted Duty: Harbatuk v. S&S Furniture Systems Insulation, 211 N.J. Super 614, 628-629 (App. Div. 1986). If the employer provides full-time restricted employment within the worker’s capacity, temporary disability benefits may be stopped, but not if the employer fails to offer suitable work. Furthermore Harbatuk favorably described an Oregon decision supporting the principal that a worker need not seek easier work in a different field while under active treatment to cure a work-related medical condition.
Med-Temp Motions: Must be filed if a worker has no way of obtaining necessary medical treatment, if there is a dispute over restricted duty, or if the worker is in financial distress and has no other means of obtaining temporary disability benefits. The motion is given priority on the calendar.
Temporary Disability Benefits (TDB). A disabled P can get TDB for six months (at 66.6%) while waiting for resolution of Med-Temp. Motion (fill out Agreement to Repay form). The Department of Labor gets a lien on comp recovery that must be repaid if the comp case is successful.
3. Permanent Disability Benefits. Worker not eligible until 26 weeks (6 months) after MMI or after return to work—whichever is earlier. Must show by objective medical evidence that the worker suffered a loss of functional capacity to work. The award is not for pain and suffering though pain and suffering may be considered if it affects ability to function. Both sides must have permanency exams to resolve the case. Benefits may be for permanent partial total (the worker is not fully disabled) or permanent total (due to injury the worker is unemployable in a reasonable stable job market).
In the struggle to combat workplace bullying it’s important to admit that we worker bees aren’t always perfect. Weak managers can quickly lose the respect of their team only to watch them spiral hopelessly out of control and even mob up on their leader. In the interesting Businessweek article below, Jeff Schmitt tells bosses how to “kick ass” without being psychologically abusive:
A guide to reading your employees the riot act: Time to lay down the law? Some points to consider before you do
“If I go down, you’re all going down with me.”
Our manager had finally crossed the line with this comment. She had delivered fire-and-brimstone speeches before. But this was different. Suddenly, she wasn’t Vince Lombardi Light, looking to get back to basics. Instead she had degenerated into a narcissistic despot who’d stoop to using us as human shields. She was passing the buck and covering herself. She may have considered it motivation. We saw it as a meltdown.
At some point, every manager must unload a kick-in-the-ass speech. Even the best teams get cocky and careless; they forget what’s important and what got them there. But here’s a reality check: If you have to deliver “The Speech,” you’re probably failing as a manager. Before you let loose with the grand oration, maybe you need a wake-up call. Sure, there’s truth in the adage about tearing people down to build them back up. But getting your team back on track requires more than threats and cursing. Want to really get their attention? Read the following recommendations.
1. Consider if The Speech is merited
Sure, you’re disappointed with performance. Before you go Knute Rockne, consider if the situation warrants an explosion … or coaching. Are you nearing a tipping point where financials or expectations dictate an intervention? Is there a broader motif, such as slow service, that could spill into critical areas such ascustomer retention? Should this diatribe be public and include everyone or could it be handled privately with certain members? Most important, what do you want to achieve? Bottom line: Weigh the offense against your options and the desired response.
2. Come with a plan
You’re probably tempted to graphically challenge their commitment and competence. But you’ll only look clumsy if you ad-lib The Speech. You want your team squirming, stomachs sinking, minds racing. That requires strategy: a bolo-punch opening, unassailable arguments, and a call to action that echoes for weeks. Even more, it demands rehearsing to get tone, pace, posture, and gestures just right. Fact is, you only get one or two speeches before your team tunes you out. Make this one count.
3. Don’t fly off the handle
A loose cannon. That’s how you’ll be labeled if you can’t control your emotions. They’ll snicker and lampoon you to everyone within earshot. Your anger, however genuine, must be calibrated for effect. Before you venture into the lion’s den, step back, breathe, and relax. Remember, an icy resolve often commands more attention than a rant. A pause can be as lethal as a pejorative.
4. Prep them
Surprise! Surprise! No, your speech shouldn’t come as a shock. In fact, it should hark back to previous fireside chats, where you focused on listening and understanding. Back then, you expected that your coaching would establish how important the task at hand was. But the time for such niceties has passed. A hands-on approach is needed. They can’t say they didn’t see it coming.
5. Cite specific examples
The Speech is no time for generalizations. Be specific: What actions and underlying sentiments are creating tensions and why are they unproductive and inappropriate? How has it affected customers and other departments? Of course, outline how these shenanigans have hit the radar of those above you — and what consequences will follow if they continue.
6. Keep it short
Your job is to shake them up and leave a lasting impression. The less said, the better. Let their imaginations run wild; it’ll keep your message on top. Don’t go off on tangents or pile on, either. It will only dilute your message. Cut quickly and deeply, then move on.
7. Set expectations
You’ve identified the problem. Now what? Start by leaving no ambiguity with the takeaways. Specify exactly what you expect, along with when and how. Don’t forget to spell out the repercussions for failing to meet these expectations. Hammer home that the time for second chances has long passed.
8. Monitor your own behavior
Their eyes will probably glaze over during your speech. Why? They’ve been mirroring your behavior. Is it any wonder you haven’t been getting through? Address it in your speech. Accept some blame and summarize how you’ll change. Then hold yourself as accountable as you hold your team for the result.
9. Rebuild bridges
You go to battle with the people you have, not necessarily the ones you want. Afterward, your team will make excuses and entertain mutiny. That’s why you need to quickly reel them back. Reach out, one by one, to tutor, praise, and motivate. You’ve shared what needed to be said. Now convey through action that there are no hard feelings. Don’t let them confuse you with the message.
10. Follow up
You’ve thrown down the gauntlet. But the weeks following The Speech will ultimately determine its success. That’s why you need to stay on the issue. Address it in interactions and meetings and constantly collect results. And when the time is right, celebrate. You may have devised the plan, but your team will ultimately win the battle.
Last May the Ventura County Grand Jury (CA) submitted their “Final Report on Bullying in the Workplace.” Free of divisive and accusatory rhetoric it neatly outlines the need and procedures necessary to start correcting the situation. Included in the report is a link to an online Sample Workplace Bullying Policy. The report includes discussion of overlaps with existing discrimination and workplace bullying policies:
“FI-02. Processes in place to report workplace behavior problems are not trusted by employees because the agency with the alleged bullying issue is allowed to investigate complaints using personnel within its own organization. This system risks the exposure of a complainant’s identity and reinforces employee perception that the investigation would not be conducted fairly. (FA-05, FA-06, FA-12).”
“The Grand Jury recommends that the Ventura County Board of Supervisors (BOS) issue a policy against bullying and collect data to identify the existence and extent of bullying in branches of County government. The CEO-HR should establish an independent process to report cases of bullying. This process should include a separate bullying hotline staffed by non-County personnel for documenting complaints. Investigations into bullying complaints should be coordinated by the CEO-HR. This should include direct oversight of all investigators and enforcement of restrictions that preclude investigators from handling complaints within their own departments”
Board Response and Changes
Equally fascinating is the Boards response [September 2011]. NB: While some have said there’s no “bite” in the Grand Jury’s ability to implement changes, this approach should mesh well with the goal of many advocates for anti-bullying legislation who claim they are against large settlements and are really fighting to put policies and procedures in place. The actions of the Board shows how quickly and cost effectively many of our workplaces can comply with needed changes. SEIU did a survey that found widespread bullying. Although it should be noted that their definition very broad. Here are some “highlights:”
Video testimony of a woman who says she left her job in Human Resources because her boss bullied her and her health deteriorated. She now regrets that prior to her own experience an employee had come to her for help but she didn’t understand how devastating workplace bullying can be.