State of Tennessee Dips its Toes into Workplace Bullying

Oct. 13, 2014
In 2014, Tennessee took a cautious step into the workplace bullying arena. Even this small step required boldness on the part of the general assembly and the governor. My hat is off to them.

The state legislature of Tennessee this year passed a bill called the Healthy Workplace Act. The bill defines “abusive conduct” at work. This is what many call workplace bullying. 

First, let me allay concerns of managers in the private sector about government involvement in abusive behavior in the workplace. Don’t worry; this bill does NOT apply to you! Next, I want to allay concerns of managers in the state and local government agencies. Don’t worry. This bill does apply to you, but you don’t have to do anything!  (I told you this was a cautious step.)

If nobody has to do anything, why did they pass the bill?  The answer to that is very subtle. The new law does not compel state and local agencies to do anything. 

However, if agencies adopt a model program (which is due by March 1, 2015) or a comparable program, then those employers “shall be immune from suit for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish.”

Why Should I Do Anything?

The bill creates a “safe harbor” from the storm of a law suit for infliction of mental anguish for the employers who adopt the model program or equivalent. While this law protects employers with acceptable policies on abusive conduct, it does not “limit the personal liability of an employee for any abusive conduct in the workplace.” 

A really nasty employee, who inflicts mental anguish, still is subject to a lawsuit for his or her own behavior.  If the employee loses, he or she pays the bill, not the employer. In case you wonder whether there are such cases, the answer is yes.  I am friendly with one lawyer who brings such cases, and she scares the heck out of me.

So, what is “abusive conduct?”

Let’s get to the substance of the bill, which is the definition of abusive conduct:

“Abusive conduct means acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment, such as:

(A) Repeated verbal abuse in the workplace, including derogatory remarks, insults and epithets;

(B) Verbal, nonverbal or physical conduct of a threatening, intimidating or humiliating nature in the workplace; or

(C) The sabotage or undermining of an employee's work performance in the workplace…”

After studying workplace bullying for 12 years, I think this is very good. It recognizes nonverbal conduct and the sabotage or undermining of an employee's work performance. Too often, such programs are limited to verbal abuse. But you don’t need words to torment and demean a worker; sometimes, it is done with silence.

Further, the bill directs the Tennessee advisory Commission on Intergovernmental Relations (TACIR) to create a model policy for employers to prevent abusive conduct in the workplace. The bill also specifies that the model policy shall: “(1) Assist employers in recognizing and responding to abusive conduct in the workplace; and (2) Prevent retaliation against any employee who has reported abusive conduct in the workplace.”

What Is Missing?

After a state or municipal agency adopts the model program, does the agency actually have to carry out the policy they say they have adopted? They should, but I don’t see that in the bill. Suppose an agency prints up a policy and hands it out, but does not act on it. Have they really “adopted” that policy? What do you think? I think not. TACIR’s model policy should make that clear.

Also, the bill says that the model policy shall “prevent retaliation.” Even the best policy cannot prevent retaliation by some impulsive, nasty person. However, the model policy could “prohibit” retaliation, and spell out the consequences. That, too, should be in TACIR’s model policy.

More Work To Do

The advisory commission still has work to do. I think they could benefit from seeing some of the best elements in federal workplace anti-bullying programs. They are the elements I would use to create the very best policies and programs. Unfortunately, some of the best ideas are found in several federal programs that have not been shared on public websites.

I saw the federal programs that were on public websites and I received those that were not. I will share the best elements in those programs in another article.

About the Author

Edward Stern | Researcher and Expert Witness

Edward Stern served the U.S. Department of Labor for 40+ years as a senior economist and policy/program analyst. He developed regulations, analyzed enforcement strategies and innovated methods of compliance assistance. For the last 27 years, in OSHA, he examined health and safety risks and regulatory feasibility. He also led teams of scientists, IH’s, engineers, doctors, nurses, systems analysts and attorneys from the Department of Labor and the public sector to develop interactive, diagnostic “Expert Advisors” to answer which, whether and how OSHA rules applied to situations. DOL adopted this approach for many other labor law issues. He presented a study on bullying at the Labor and Employment Relations Association annual conference in 2007. He wrote the workplace bullying and psychological aggression chapter of “Halt the Violence” (e-book, Amazon). He is a researcher and advisor on workplace bullying to management and labor, and an accepted, expert witness on bullying in arbitration cases. As a retired fed, he represents AFGE Local 12 on the USDOL Workplace Violence Committee. He can be reached at [email protected].

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