MASSACHUSETTS: Using Anti-Harassment Laws For Workplace Bullying

revellilaw.com

It’s barely two years since Massachusetts enacted the Harassment Prevention Order. Recently an attempt to hold Kingston Town Administrator Jim Thomas accountable for alleged abusive conduct fell short. But, Kingston Police Sgt Susan Munford, who made the charges, told the Kingston Reporter: “I’m glad I was heard, I’m glad the restraining order is behind me, and I’m glad he was advised to not have any further incidents with me,” she said. “That gives me peace of mind.” Employment Defense Attorney Denise Murphy advises employers to take precautions because this HPO may well be used in cases of workplace bullying. Here’s a reprint of her 2010 article on the topic: 

Workplace Bullying & The Massachusetts “Harassment Prevention Order”:

Massachusetts has enacted new anti-harassment and anti-abuse laws which will affect on the workplace. The law, which becomes effective on May 10, 2010, creates a procedure for anyone to obtain a protective order for harassment if they are the victims of three acts of intimidation, abuse, or property damage, or are they are the victims of a forceful or threatening act which causes another to involuntarily engage in sexual relations or other related crimes. The law uses definitions of “abuse” and “harassment” which are so broad that there will be significant workplace implications.

These procedures allow courts to issue Harassment Prevention Orders (”HPO’s”) against anyone who engages in these types of behaviors.  Unlike the more restrictive state and federal anti-harassment laws which prohibit harassment based upon protected class status, HPO’s are not subject to administrative filing prerequisites, nor are they limited to claims based upon protected class status. HPO’s can be filed in superior court, the Boston Municipal court, or the respective divisions of any juvenile or district court in which the plaintiff resides.  And, they may be filed on an emergency basis without any notice to the defendant (ex parte).

The statute defines “abuse” as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.”  Under the HPO, if a person engages in “3 or more acts of willful and malicious conduct with the intent to cause fear, intimidation, abuse or property damage toward a specific person, and does, in fact, cause fear, intimidation, abuse or property damage to that person, the victim may obtain injunctive relief from the court, prohibiting the harasser from any contact with the victim.  As a practical matter, this means that an employee who engages in this type of behavior at work can be prevented from returning to work until and unless the issue is resolved to a court’s satisfaction.

We are all aware of workplace situations in which co-workers, bosses, and even clients and customers, engage in inappropriate and unprofessional conduct at work.  They yell, they scream, and they throw things around when things don’t go their way.  So called “workplace bullies” are not the norm, but they do exist and create significant morale and productivity issues at work.  Now, with the implementation of this new law, the possibility exists that these unrestrained individuals face far more significant consequences than disciplinary actions from their employer.  While HPO’s are civil in nature, they are enforced criminally if violated.

What Should a Massachusetts Employer Do?

As a result of the new Massachusetts law, employers should undertake measures to reduce the likelihood of abuse or harassment within the workplace. Prevention of abusive behaviors and harassment should be the first goal. If reported, an immediate and appropriate response is critical. I suggest that every employer provide training, guidelines, and effective reporting procedures.

For further information regarding the implications of this new law in the workplace, please contact me directly at dmurphy@rubinrudman.com or at (617) 330-7123.

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