Public Employees: Connecticut

Several years ago Connecticut State Senator Edith Prague wanted to pass workplace bullying legislation for public employees. The opposition argued that it was already covered under workplace violence policies and a study was requested to determine if it was indeed included. I was filming Prague’s support of the Healthy Workplace Bill at the time and remember well that she was passionate about the topic and surprised to learn that the handbook policies put in place after a tragic workplace 1998 shooting nearly 10 years earlier actually did address bullying behavior. The 2008 report concluded that:

“In 1999, Executive Order No. 16 outlined a new violence in the workplace prevention policy and directed all state agency personnel, contractors, and vendors to comply with it. In addition to prohibiting violence and the use of weapons, the order prohibits employees from threatening harm to any individual in a state worksite. It further requires (1) employees who feel subjected to or witness violent, threatening, harassing, or intimidating behavior in their workplace to immediately report it and (2) managers and supervisors to contact their human resources office and take other appropriate steps. If an investigation determines there is a violation, the employee in question can be disciplined up to and including discharge from state services. It appears the policy covers much of what is considered workplace bullying…“

Over a dozen years later unions and advocates have finally recognized that this type of approach can help protect workers. Municipalities like Ventura County (CA), Pima County (AZ), Hennepin County (MN) and others have only recently expanded discrimination and workplace violence policies to address bullying. Imagine how much suffering could have been spared if this approach had been embraced earlier on. But, what about workers in the private sector?

Private Employers: Shawn Berg v TJ Maxx

Over the course of 9 years Shawna Berg worked her way up to supervisor and received promotions and raises along the way. She went on medical leave to deal with a series of health issues and during her absence some of her employees complained that she was a “bully.” This recent court case, hinged on whether or not the reasons that Berg was fired were justified or instead was retaliation for her medical leave that rose to the level of libel. The court ruled in favor of the employer – TJ Maxx. You can read the court papers to decide for yourself if the allegations were true and who did what. Here are excerpts from  Shawna Berg v TJ Maxx :

On May 27, 2011, while Berg was on leave, Lattin made an unscheduled visit to the Missoula store. Three employees reported to him that Berg had grabbed an associate, Rachael Halstead, on the upper right arm hard enough to leave a bruise. The employees also relayed other concerns about Berg’s management. Lattin initiated an investigation. He returned to the store on June 2 and 3, 2011, to interview numerous employees. Some of the employees reported that they were afraid of Berg, that she was a bully, and that she treated people unfairly. Specifically, Lattin was told about the incident where Berg allegedly bruised Halstead’s arm, occasions when Berg swore in front of employees and customers, and interactions with Berg that were perceived to be unfair, intimidating, or overbearing. Lattin also viewed a videotape of the interaction between Halstead and Berg, confirming that Berg stopped Halstead at one point by holding or gripping her right arm and rubbing or caressing her left arm. Lattin was unable to tell by watching the video how tightly Berg held Halstead’s arm, but Halstead and others reported that the incident left a bruise. Lattin credited the employees’ reports about Berg’s conduct, but Berg asserts that some of the employees socialized with her outside of work and may have had other reasons to want her terminated.

Berg remained on medical leave until early July. Prior to returning to work, she notified Lattin that she would need to leave early on her first day back in order to take her daughter to the orthodontist. Lattin approved her request. At the time, Berg did not know that her daughter had cancer, and she did not tell Lattin that she would need any other time off in order to take of her.

Berg’s first day back was July 11, 2011, and Lattin informed her about the complaints he had been investigating. Berg provided a written statement. Several other employees also provided written statements, largely repeating the information they had shared in their earlier interviews. Sometime later that day, Lattin informed Berg that she was being placed on paid administrative leave while T.J. Maxx completed its investigation.

During the investigation, Lattin conferred with Andrew Gibson, T.J. Maxx’s Manager for Human Resources for the Pacific Region, about the employees’ complaints and the investigation. Gibson then consulted with Soley McCabe, T.J. Maxx’s Zone Associate Relations Manager at the time, emailing her the employees’ statements and Lattin’s summary of the investigation. Lattin, Gibson, and McCabe all agreed that termination was appropriate. They particularly focused on the bruise Berg had allegedly left on Halstead’s arm as a violation of the prohibition on violence in the T.J. Maxx Code of Conduct, but they were also concerned about the workplace environment Berg had created. Berg’s employment was terminated effective July 18, 2011.

Lattin later represented to T.J. Maxx’s unemployment insurance claim processor that Berg was let go based on the act of grabbing Halstead’s arm hard enough to leave a bruise. He also represented that the subsequent investigation revealed that the incident was part of an ongoing and escalating pattern of behavior. He stated that Berg was terminated specifically for violating T.J. Maxx’s code against violence and threats of violence, which states that “you must not threaten violence, use offensive language, or engage in verbal abuse, harassment, intimidation or violent behavior in any form.” (Doc. 42 at 1.) The Code of Conduct, which Berg acknowledged that she had read and agreed to follow, provides that “[v]iolations of this Code or Company policies may result in discipline, up to and including termination and/or legal action.” (Doc. 41 at 6.) It requires managers to “[c]reate an environment of integrity, accountability, and mutual respect that supports doing the right thing” and to “[e]arn respect and lead by example.”

..[TJ Maxx] appropriately relied on employees’ reports and Lattin’s investigation in determining that Berg held or grabbed an employee’s arm hard enough to leave a bruise, that she used profanity in front of employees and customers, and that employees felt intimidated and harassed and perceived her as a bully. T.J. Maxx’s Code of Conduct prohibits “verbal abuse, harassment, intimidation, or violent behavior in any form,” and it was not “false, whimsical, arbitrary or capricious” for Lattin, Gibson, and McCabe to conclude that any physical manipulation of an employee, particularly if it leaves a bruise, constitutes intimidation or violent behavior…

Related articles

• Codes of Conduct Can Protect Employees From Bullying (bullyinworkplace.com)
• Governor Vetoes Workers Comp Study to Address Workplace Bullying (bullyinworkplace.com)
• Using Union Contracts To Protect Teachers From Bullying (bullyinworkplace.com)