March 8, 1998 the Washington Post published an Op-Ed in response to a Supreme Court decision, Oncale v. Sundowner. Sadly, the essence of this Op-Ed still resonates today: “Predicating harassment suits on discrimination is also something of a mismatch; what bothers people about abusive workplace conduct, after all, is not the fact that it may be discriminatory but that it is abusive in the first place… Congress should decouple Continue reading
We crawled over the figures from the EEOC and BLS to build a map that let’s you see how your State ranks nationally based on the number of EEOC Claims filed in 2012. Keep an eye on all the figures – while California has slightly less claims than Florida it also has half as many employees making California much less toxic. Ohio and Tennessee both show up in the low 3,000’s but Ohio has twice the work force making it twice as hostile. New York looks pretty good as a big employer and only 3.9% of the national average and Massachusetts shines. However, Georgia looks like a place to avoid. You’ll find plenty of data to play with so let us know if you can figure out why some states have more claims than others! Continue reading
Recently a member of our Facebook group wrote to say her boss told her he’d be going out of town next week so don’t bother coming in. And, oh yeah, she wouldn’t be paid either. Legal in your state? Ask an attorney. But, here’s what the DOL says: “an employer may change an employee’s work hours without giving prior notice or obtaining the employee’s consent (unless otherwise subject to a prior agreement between the employer and employee or the employee’s representative).” Where are those union contracts when we need them? Few of us really know our rights – here’s an important article by an employment lawyer, Donna Ballman, that EVERY employee needs to read: Continue reading
Too many victims of bullying and harassment have seen their reputations torn to shreds as they struggle to heal and find new employment. In 2010 Dr. Katherine Murphy lost sexual harassment and retaliation claims against the Aventura City charter school she helped found and Aventura City Manager Eric Soroka. Later an Appeals Court upheld the verdict stating she was unable to prove a hostile work environment and, based on the testimony of co-workers, Soroka did not “single out females as targets for the profanity”:
Murphy testified that she asked Soroka to stop bullying her and that she complained to a former supervisor, Soroka’s assistant, and a city commissioner that Soroka had used “vulgar, inappropriate language,” and engaged in “bullying, yelling, [and] screaming.” Murphy failed to report Soroka’s conduct, formally or informally, to her employer, and Murphy acknowledged that she did not complain to Soroka’s assistant or the city commissioner that Soroka’s conduct was sexually hostile or sexually harassing. The district court correctly entered summary judgment against Murphy’s complaint of retaliation.
Fast forward two years to November 2012. Murphy wins a whopping $155 million for defamation, conspiracy, and intentional infliction of emotional distress. The Miami Herald reports that: Continue reading
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 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).
When Is a Law Too Business Friendly?
Many of the victims of workplace bullying that I come in contact with are devastated by the struggle to overcome anger and feelings of powerlessness. They want to take action. They want to protect others. They want a law!
Proposed legislation like the Healthy Workplace Bill (HWB) seems made to order. But, Patricia G. Barnes argues 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 is impressive and 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. She understands workplace bullying and she understands law.
“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,” she 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. The passionate volunteers fighting for the HWB can add (or delete) language in the bill that places limitations on abused and bullied workers. Here is Barnes’ critique of the HWB:
“The Healthy Workplace Bill”
[by Patricia G. Barnes] This proposed bill (see below) 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.]