Preventing workplace bullying as part of an ethical culture

Most companies by now understand that fostering a culture of ethics and compliance in the workplace is a cornerstone of the most effective corporate governance programs. That culture, they’ve learned, must start at the C-suite and extend to employees working in the most remote locations in the field.

A key aspect of an ethical culture is transparency, most often thought of in terms of how much companies disclose about their compensation, sustainability and other practices to shareholders and regulators. But more employees are demanding transparency as well, particularly members of the millennial generation, born between the early 1980s and early 2000s, according to Sharon Parella, a partner at Morrrison & Foerster who leads the law firm’s Advance@Work program.

Transparency for employees means a work environment where employee achievement is recognized and rewarded and there are no secret paths for  advancement and promotion. One way to support integrity in the workplace is by taking steps to prevent workplace bullying, according to Parella.

‘I think most employees are truly seeking that meritocracy and where they see bullying, unequal treatment of employees, lack of transparency, I think that for many employees it throws up huge red flags that the workplace is not a meritocracy and so it’s better not to invest in it for the long term,’ she says.

One big challenge in combating bullying is that it’s harder to recognize and often less overt than discrimination or harassment. That’s why many states are arguing the need for a law separate from anti-discrimination laws.  

Last week a bill that would protect employees from workplace bullying cleared the Massachusetts State Legislature’s Joint House-Senate Committee on Labor and Workforce Development, becoming eligible to go to the floor for a vote.

Massachusetts is one of 26 states that have introduced a version of the healthy workplace bill since 2010 and one of two states (the other is New York) where it has the best odds of being voted into law, says Gary Namie, director of the Workplace Bullying Institute in Bellingham, Washington.

Last month WBI released the results of its 2014 national survey, which used a stratified random sample of 1,000 participants to show that 27 percent of  adult Americans have directly experienced abusive behavior on the job, while 21 percent have witnessed it. The survey also showed that 56 percent of perpetrators are bosses, 68 percent of perpetrators are men, and 60 percent of targets are women.

Although the healthy workplace law is designed to prevent abusive conduct that can’t be tied to discrimination or harassment based on ethnic or racial identity or sexual orientation, there’s very little punishment in the bill for offenders, says Namie.

‘It’s basically an incentive. If [employers] take reasonable steps to ‘prevent and correct’ an abusive workplace -- that means create a policy and faithfully enforce it -- then they will be able to escape vicarious liability,’ he says. ‘It’s not about punishment. It’s about doing what you should be doing voluntarily because you’re not doing it now.’

Parella believes that workplace training would be more constructive than any of the laws currently pending, which include flaws such as defining abusive conduct (in the New York bill) as that which ‘subjects that employee to abusive conduct that causes physical harm, psychological harm or both.’

‘Why should someone have to prove they became sick? You should be able to say you were bullied without having to get yourself sick first,’ she says. Parella also worries about intrusive examination of medical records to which claimants could be exposed.

Namie defends the inclusion of demonstrable health impacts in the legal definition of workplace bullying. ‘It’s something we built in to establish a very high standard so critics could not say [a bullying claim is] frivolous or manufactured,’ he says. Those are also the only cases plaintiff attorneys will be convinced have merit, he asserts.

And the scrutiny of medical records would be no different than that which people who file emotional distress claims are currently subject to, adds Namie.

Parella agrees that any workplace bullying law should require training and policies, as well as internal mechanisms for reviewing claims and addressing misconduct. According to a study that Advance@Work conducted earlier this year, only one in 101 respondents said his or her employer provides training on bullying, while just three participants said their employers maintain policies concerning it.

‘I’ve seen when you have a process and you have training, it really works,’ she says.