By Olivia Wann, JD
Have you been bullied in the workplace? “Bullying” and abusive conduct may include persistent, multiple, unreasonable incidents that offend, degrade, intimidate, or humiliate a person.
Bullying includes acts of cruelty, belittlement, degradation, yelling or screaming, excessive or unjustified criticism, public reprimand or behavior intended to punish, such as ignoring or excluding someone from workplace activities, intimidation, ridicule, threats, insults or sarcasm, humiliating or demeaning a person in front of others, trivialization of views and opinions, or unsubstantiated allegations of misconduct, sabotaging someone’s ability to do their job, unfairly blaming them for mistakes or stealing credit for their work, assigning an excess of work deliberately to cause stress to the individual, or physical violence such as pushing, shoving, or throwing of objects.
Bullying corresponds to the legal term “emotional distress”. Could a team member have a claim for emotional distress in your workplace? Manifestations of emotional distress include nausea, vomiting, headaches, severe weight loss or gain, sleeplessness, depression, anxiety, crying spells or emotional outbursts, nightmares, drug and/or alcohol abuse. Perhaps a bullied employee sought medical care and there is evidence of them having been treated for a post-traumatic stress disorder or being prescribed medication.
The goal of employers should be to provide a workplace where employees are treated with dignity and respect. The Healthy Workplace Act was adopted in Tennessee five years ago. On April 23, 2019, the General Assembly amended the Act to extend its immunity to private employers.
After all, employees have the right to be treated with dignity and respect. All complaints of negative and inappropriate workplace behavior should be addressed and resolved promptly. If an employee is the victim of bullying or abusive conduct, the employer is subject to claims of intentional and negligent infliction of emotional distress in addition to a hostile work environment.
The new law allows an employer to seek legal immunity by means of adopting the model policy created by the Tennessee Advisory Commission on Intergovernmental Relations. Please review the model policy at https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-january/2015Tab%204HealthyWorkplace.pdf.
The model policy details that a single act generally will not constitute abusive conduct, unless such conduct is determined to be severe and egregious. Furthermore, abusive conduct does not include
- Disciplinary procedures in accordance with adopted policies of the employer
- Routine coaching and counseling, including feedback about and correction of work performance
- Reasonable work assignments
- Individual differences in styles of personal expression
- Passionate, loud expression with no intent to harm others
- Differences of opinion on work-related concerns
- The non-abusive exercise of managerial prerogative
The employer’s responsibility is to ensure that healthy and appropriate behaviors are exhibited at all times and that complaints to the contrary are addressed in a timely manner. Those serving in managerial positions must provide a safe working environment and implement preventative measures to dealing with threatening or potentially violent situations right away. Managers must serve as a good example of treating fellow employees with courtesy and respect. Employees should be familiar with the employer’s abusive conduct prevention policy and know how to access a copy. Employees should be aware of the steps to take if inappropriate behavior at work is taking place. There must be an action plan to resolve such before it escalates in order for such conduct to be addressed promptly and with confidentiality. Retaliation is prohibited.
Employees must be trained on how to report a matter orally or in writing. Any complaints should include dates, times, locations, and any witnesses. Management then reports to the practice administrator or practice owner. Thereafter, reasonable steps must be made to protect the complainant, including separation of the employees involved. The person complained against will be notified that an allegation has been made against him or her and informed of the investigative procedure.
Investigations of abusive conduct shall be conducted as soon as practicable and in accordance with the policies and procedures of the Practice. The objective of the investigation is to ascertain whether the behaviors complained of occurred, and therefore will include interviewing the complainant, accused, and witnesses with direct knowledge of the alleged behaviors. All interviews will be appropriately documented. The investigation will be conducted thoroughly, objectively, with sensitivity, and with due respect for all parties. The investigator will provide a copy of the investigative report to the appointing authority for further action. All affected parties will be informed of the investigation’s outcome.
In the event of a finding of abusive conduct, the employer will take immediate and appropriate corrective action. Remedies may be determined by weighing the severity and frequency of the incidences of abusive conduct and in accordance with existing disciplinary policies of the Practice.
Any employee who engages in conduct that violates this policy or who encourages such conduct by others will be subject to corrective action. Such corrective action may include but is not limited to participation in counseling, training, and disciplinary action up to and including termination, or changes in job duties or location.
Supervisory personnel who allow abusive conduct to continue or fail to take appropriate action upon learning of such conduct will be subject to corrective action. Such corrective action may include but is not limited to participation in counseling, training, or disciplinary action up to and including termination, or changes in job duties or location.
When abusive conduct has been confirmed, the employer will continue to keep the situation under review and may take additional corrective actions if necessary. Preventative measures may also be taken to reduce the reoccurrence of similar behavior or action.
Throughout this process, the Practice will maintain the confidentiality of each party involved in an abusive conduct investigation, complaint, or charge, provided it does not interfere with the ability to investigate the allegations or to take corrective action. However, state law may prevent the employer from maintaining confidentiality of public records. Therefore, the Practice cannot guarantee confidentiality.
If you need assistance in providing an anti-abusive conduct training and/or implementing the necessary policies into your workplace, give us a call today at (931) 232-7738 or email firstname.lastname@example.org.