Can you win a lawsuit if workplace bullying legislation passes?

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.  John 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[4] 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).

Workplace Bullying: Where’s The Beef?

I believe that if we’re honest with ourselves we can learn some hard lessons from Freedom From Workplace Bullies Week – an event that has been around for at least 4 years.  This year I decided to join in the effort and sponsor Take Action Screenings and offered free DVDs as part of our new initiative to use film to create change.  I’m delighted that the videos were used by advocates in a dozen states – and Australia – in a wide variety of venues.   But, I also recognize that this is a drop in the bucket for what needs to happen on a broader level.  Freedom From Workplace Bullies Week has been in place nearly half a decade.  And, while we applaud the efforts of others scattered around the country who worked hard to garner signed proclamations in 38 cities and one county, it’s important for us to heed this as a wake-up call.   As near as I can tell there are some 30,000+ cities in the US.  That’s not to denigrate any of the work others are doing – it’s merely meant to raise the bar.  Ironically, workplace bullying was more prominently covered by the media in the months leading up to the event.  So, the real question is: why hasn’t this effort really resonated beyond a small cadre of people into a true coalition?   Is it time for a new approach?  Here’s an article from WhenTheAbuserGoesToWork.com that asks just that. Patricia Barnes asks that we start to look in new directions.  In keeping with our mission to foster open and frank discussion, you don’t have to agree with her or me but you do owe it to yourself to become part of the discussion.  READ ON:

Labor Secretary Sleeping on the Job?

With America’s workplace anti-bully movement seemingly stuck in the trenches, perhaps it is time to follow the example of America’s neighbor to the North.

The Canadian province of Quebec amended its Labour Standards Act in 2002 to ban non-discriminatory workplace harassment and bullying. The law, which went into effect on June 1, 2004, also imposes a duty on employers to prevent and stop bullying.

According to one observer, the law was the result of a sustained campaign by Quebec unions, as well as by a non-profit advocacy and resource group for non-unionized workers, “Au bas l’echelle” (in English, “Rank and File”).

This effort resulted in the establishment in 1999 by then Minister of Labor, Diane Lemieux, of an Interdepartmental Committee on Psychological Harassment at Work. The committee in 2001 recommended the government take legislative steps to prohibit psychological harassment.

It is time for unions and workplace anti-bully advocates to call upon U.S. Secretary of Labor Hilda L. Solis to empanel a commission to study the problem of workplace bulling in the United States and recommend new legislation to Congress.

There is overwhelming research that the problem of workplace bullying is epidemic in the United States, affecting at least one in four workers, and that workplace bullying destroys lives and costs American employers billions every year.

Efforts began in the United States almost a decade ago to pass a so-called Healthy Workplace Bill on a state-by-state basis. Thus far, no state has adopted the bill, which is much weaker than Quebec’s legislation.

Meanwhile, the worsening economy has left more and more workers vulnerable to bullying. Not only are there fewer jobs, but the nature of the workforce is changing. More workers today are categorized as “independent contractors” who receive no benefits and low pay. These include home-workers, tele-workers, piece-workers.

Even if one state does step up and adopt a workplace anti-bully bill, it will take decades, if ever, before all of the states do.

*** See Debra L. Parkes, “Targeting Workplace Harassment in Quebec: On Exporting a New Legislative Agenda” (2004) 8 Empl. Rts. & Employ. Pol’y J. 423.

Guide To Kicking B*tt In The Workplace

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

[Article by Jeff Schmitt, 10/13/2011 Bloomberg Businessweek/ msnbc.com]

“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.

The Final Chapter: Tracey’s Law Against Workplace Bullying

Why Tracey’s Story Is So Important:

To me, Tracey’s story shows how complicated the answer is to the first question that victims are always asked: “if you don’t like it there why don’t you just get another job?”  Personally, I began making films about workplace bullying because I was smack in the middle of my own office drama.  I was attracted to Tracey’s story because she was about to go on a journey that represented my worst fears.   I needed to find bully free work but I was terrified what would happen if I didn’t land one of the 2 open jobs I was qualified for in the Metro NYC area — where my husband is employed, our careers are based, and our friends and family live.   I knew I was extremely lucky to land one.  Part of the short documentary I made about Tracey’s situation included scenes of her daughter, Kali, lobbying for legislation while her mom was traveling around the Carolinas and Georgia looking for a job.  It’s been nearly over 3 years since I filmed that deeply moving scene with Kali yet still no legislation has passed.

Q: Why do you think that the HWB hasn’t passed yet?

Tracey: Why do I think there has not been a HWB passed yet is a tough question to a tougher answer. Personally, I do not like the bill to begin with. I believe it is too corporate friendly in that there is no really big reason for corporates to embrace a law that has very small consequences. Having a cap on the claim a target can obtain is ludicrious. My real belief though is that there continues to be a blindfold on this real issue to our senators and congress men and women.  While some have been very supportive, others don’t.  I find this rather silly when I sit and listen to how the parties behave in the senate and treat each other. They are bullies!  I don’t really know why the bill hasn’t passed but I’d sure like to hear other’s opinions on it.

Q:  Is there anything you would particularly like to add…

Tracey: I want to thank everybody who have worked tirelessly at getting a HWB passed. I know that many of you have suffered personally due to tragedies that happen in the workplace. My heart is with you. I hope that one day I might feel better to re-join you but in the meanwhile, know that my heart is with you all and I am so grateful for all your work.

Tracey’s Law is featured on our “Virtual Town Hall” page or can be accessed for free on both YOUTUBE & Vimeo.

A plea to fellow fighters of Workplace Bullying

I became a co-founder of the fledgling cyber-group called the International Educational Coalition on Workplace Bullying. I’m excited that the Coalition allows me to join so many others in freely promoting critical discussion, context and analysis of all the research taking place and how it impacts the overall understanding and  prevention of hostile work environments.  Everyone visiting our Facebook Page is encouraged to add their own opinion and approach.  Do I personally agree with everyone who posts on the site? No, and I’m proud to say that even the three of us who originally founded the IECWB don’t agree on all aspects of the issue and encourage everyone visiting the site to have that same healthy discourse. Our International focus has allowed different perspectives, coupled with personal experiences, to come together on one page.  It’s been eye opening to see how even countries with Workplace Bullying legislation in place are still struggling to define the best resolutions.

We bring together psychologists, lawyers, researchers, business & Human Resource representatives, advocates and victims to create a forum for all our voices.  And, there are so many things to discuss, below is just a sampling:

Support of strong Workplace Violence legislation that includes Workplace Bullying (Type 3 Workplace Violence) and making the link to Type 4 which includes Domestic Violence in the workplace as well as specific issue Workplace Bullying bills

Strengthening OSHA health harming protections

Strengthening Workers Compensation and how it can help targets currently suffering

Exploring Arbitration, ADR & Mediation as a way for targets to find relief

Putting aside the demonization of HR and Business owners and creating a true dialogue with those that want to support us

Discussing the types of policies and approaches that are actually effective and encourage a healthy workplace that discourages bullying behavior.

Staying current with evolving research in PTSD, Stress, Anxiety Disorders

Please take a moment to visit the IECWB site to find information, share information, and join the global discussion.

Here’s a link to our Press Release if you are interested in learning more about the IECWB. http://prlog.org/10829919

Documentary features NY fight for Workplace Bullying Law

Several major publications have recently posted articles on the topic…hopefully this means victims will start getting the attention they deserve and a better law.   As someone whose life was turned upside down by an abusive boss all I can say is — it’s about TIME.  I’ve been making documentaries for 20 years that have been well received at major film festivals and on TV (HBO, PBS etc).  Last year I launched an online documentary about the struggle to pass legislation to stop abusive bosses.  This is probably the hardest of all the topics I’ve taken on.  The stigma attached to victims makes it difficult for people to take seriously.   And the mainstream press rarely goes beyond the “go to” sites to do some real in depth reporting…it’s much more complicated than the ‘branding’ that’s out there.

(Click here to see videos)