Evil HR Lady is being eeeevil again.
As a Tennessee appellate court noted in rejecting Joan Frye’s lawsuit against her hospital employer, “[T]he fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive does not violate civil rights statutes.” Some legislators are trying to change that (excited in part by Suffolk Law Professor David Yamada’s theory of making “bullying” actionable). The ABA Journal is the latest to note the trend. (The article unfortunately repeats the false smear against my colleague John Bolton.) As we noted last May,
Enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing “superpersonnel departments” dispensing financial balm for injured feelings in the workplace.
Employment attorney Richard Block is more blunt in the ABA Journal: “You’re talking about a lifetime annuity of work for employment lawyers.” Bills are pending in thirteen states.
New York lawmakers have now withdrawn a bill creating a new cause of action against employers for “bullying” in the workplace; Scott Greenfield, Victoria Pynchon, Jim Copland/E.J. McMahon, and Jon Hyman have some critical observations about the proposal. More coverage of the bill: Point of Law, McCormick/Workplace Prof, Employer’s Lawyer, and NLJRA (would apply to organizations of all sizes including small businesses).
- “Telling Employee He Is ‘Eligible’ For Bonus Not Enough to Create Contractual Obligation” [Chris Parkin/Daniel Schwartz; Connecticut appeals court]
- Richard Epstein on Obama’s anti-LGBT-discrimination edict for federal contractors [Hoover “Defining Ideas”]
- D.C. Circuit panel, Janice Rogers Brown writing, strikes down DC tour guide licensing scheme [Ilya Shapiro/Cato, WaPo, Orin Kerr]
- “Why Progressives Shouldn’t Support Public Workers Unions” [Dmitri Mehlhorn/Daily Beast]
- “James Sherk of Heritage on Members-Only Bargaining” [On Labor]
- As discrimination law gradually swallows all else: “Rep. Keith Ellison wants to make union organizing a civil right” [MSNBC]
- NY Senate committee gives approval to “workplace bullying” law. On thin constitutional ice? [Hans Bader/CEI, earlier]
From Britain: “Domestic abuse involving “emotional blackmail” – but no violence – could become a criminal offense carrying a heavy jail term under tough new measures published for the first time.” [David Barrett, Telegraph]:
“Critically, its [the draft’s] definition of abuse includes “controlling or coercive behavior” which would “encompass but is not limited to physical, financial, sexual, psychological or emotional abuse”.
“Controlling behavior” would also lead to criminal charges, including when a partner makes another person “subordinate”, “exploits their resources” or “deprives them of the means needed for independence”.
The offense would apply to abuse committed against any spouse, partner or former partner, regardless of gender.
As Pamela Stubbart notes at the Daily Caller, when based on purely psychological and emotional interactions and states of dependence, concepts like “control” and “coercion” are at best highly subjective affairs, inviting unpredictable legal application as well as he-said-she-said legal battles in the wake of breakups or other relationship failures. The measure would also threaten criminal liability for some speech (e.g., emotionally hurtful insults not involving threats of violence) that would often be included in definitions of free speech. Meanwhile, a ban on exploiting partners’ resources or denying partners financial independence threatens to throw a shadow of criminal liability over many marital and romantic arrangements long deemed unproblematic, whether or not egalitarian.
Barrett in the Telegraph notes that while the cross-party group of Members of Parliament who are introducing the bill do not speak for the Cameron administration, they have a record of some success at getting their ideas on domestic violence enacted into legislation. Offenses will carry a sentence of up to 14 years in prison.
Related: periodic proposals in state legislatures and elsewhere to ban “workplace bullying” (more) raise some of the same issues, as do enactments (like “Grace’s Law” in Maryland) endeavoring to ban “cyber-bullying.”
- Controversy over new EEOC guidelines on hiring ex-cons isn’t going away [James Bovard/Peter Kirsanow, Richard Epstein/Hoover “Defining Ideas”, Kevin Funnell, Wendy McElroy/FEE]
- That goes double if it’s true: “You cannot fire a pregnant employee because ‘the baby is taking its toll on you'” [Cohen, Fox Rothschild] Maryland bill would grant pregnant employees right to accommodation, “less strenuous job duties” if needed [Baltimore Sun]
- And similarly: “Is an employer obligated to provide light duty to an employee returning from FMLA leave?” [Jon Hyman]
- Why Card-Krueger study doesn’t change Bryan Caplan’s view on economics of the minimum wage [EconLib]
- Quest for a Labor Secretary even farther left than Hilda Solis eventuates in Tom Perez [Katrina Trinko, J. Christian Adams]
- Unhappy aftermath of Connecticut nursing-home sabotage [Washington Examiner] Assaults by members of Teamster local in Philadelphia quarry dispute draw NLRB response [Pennsylvania Independent]
- Will New York become the first state to create dangerous private right of action for “workplace bullying”? [Michael Fox]
- Union at City of Detroit water department (of “horseshoer” fame) strikes, defying court order [MLive, more]
- Furor over administration’s “don’t WARN of sequestration layoffs” message to defense employers [Charles Cooke, NRO]
- “Now the NLRB says employers can’t regulate threatening or offensive speech (this is getting ridiculous)” [Jon Hyman] Contrasting (yet somehow consistent!): “workplace bullying” docket on the rise [Corporate Counsel]
- More on NLRB, social media and employers [Tim Eavenson, Todd Sarver]
- John Stossel on government job centers [Coyote]
- “The Worst May Be Yet To Come From Obama’s Labor Board” [Fred Wszolek, Workforce Fairness Institute]
- “Should We Unionize the Grad Students?” [George Leef, Minding the Campus; Brown Daily Herald]
We’ve reported before (here and here) on the campaign by activists to establish a cause of action arising from “workplace bullying”. Efforts to get the courts to create such a right have not fared well, but the National Law Journal reports growing interest around the state legislatures:
Connecticut, for example, wants to outlaw “threatening, intimidating or humiliating” conduct by a boss or co-worker and would ban repeated insults and epithets. The proposal doesn’t specify a penalty, but would only give workers the grounds to sue.
New York’s anti-bullying legislation targets malicious conduct by supervisors that hurts employees either physically or psychologically. Mental health harm could include humiliation, stress, loss of sleep, severe anxiety and depression. The bill also would punish retaliation of the complainant or anyone who helps the complainant.
As management lawyers warn, enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing “superpersonnel departments” dispensing financial balm for injured feelings in the workplace. (cross-posted from Point of Law).
A group called the Workplace Bullying Institute says it’s preparing federal legislation that would ban the rather amorphously defined phenomenon of bullying at work. A possible obstacle: Capitol Hill itself is notorious as the stomping (and ranting and paperweight-throwing) grounds of some of the nation’s most vein-poppingly abusive bosses, such as Sen. — well, you’ll just have to follow the link if you want names (Helena Andrews, “Demanding or Downright Mean?”, The Politico, Mar. 1). For an earlier go-round, see Dec. 22, 2004.