6 October 27, 2014

California Employment Law Letter

Workplace bullying in the public sector: ‘policy’ questionsby Jeff Sloan and Elina Tilman Renne Sloan Holtzman Sakai, LLP

As we discussed in the September 22, 2014, issue of California Employment Law Letter (see “Be pre-pared for new paid sick leave law and more in 2015!”), the California Legislature enacted Assembly Bill (AB) 2053, requiring employers to include antibullying (“abusive conduct”) training as part of their sexual harassment training effective January 1, 2015. So far, no state has had the gumption to adopt an outright prohibition against workplace bullying.

With commentators and policy makers regularly documenting the adverse impact bullying has on pro-ductivity, morale, attendance, turnover, and medical and workers’ compensation claims—and with sta-tistics indicating that bullying is nearly four times as prevalent as illegal harassment—we need to ask: Why hasn’t there been a groundswell of legislative support for antibullying policies at either state or local levels?

Why not prohibit workplace bullying?There are two answers. First, many public em-

ployers believe their existing rules of conduct provide an ample basis for investigating and appropriately resolving bullying claims. They point out that under their existing policies, discourteous treatment, con-duct unbecoming a public employee, violence, ha-rassment, intimidation, or abuse of authority are all “causes” for discipline. These causes, they assert, are broad enough to cover bullying behavior.

Second, many public employers fear that an ex-plicit prohibition against bullying behavior will fuel unwarranted grievances and lawsuits over person-ality conflicts, impede management’s ability to su-pervise and discipline errant employees who believe their supervisors have bullied them, and allow em-ployees to “game the system” at the expense of public employers.

For instance, commentators on unsuccessful New York legislation said, “Anti-bullying legislation would allow employees having nothing more than ordinary disputes and personality conflicts with their supervi-sors and co-workers to threaten their employers with litigation. Surely some of these disputes would end up in court even though they wouldn’t rise to the level of actionable bullying.”

These answers aren’t entirely satisfactory. Propo-nents of antibullying policies maintain that workplace

bullying can be prevented only through specific poli-cies and procedures, effective education and training of all personnel about the perils of and prohibitions against bullying, and rigorous enforcement of “zero-tolerance” policies. Pointing to the experiences of other countries that have implemented antibullying policies, proponents also maintain that fears of abuse by “gamers” of the system are exaggerated and can be alleviated through proper administration of well-written policies.

Pointers for drafting antibullying policies

So far, very few antibullying policies exist in the public sector. Nevertheless, given the prevalence of workplace bullying, personnel managers should con-sider the pros and cons of implementing such a policy. What are the possible components of an antibullying policy? Here’s our compilation of options:

• A tailored definition based on an objective standard;

• Examples of prohibited behaviors;

• Emphasis that the policy doesn’t prohibit appro-priate supervision and discipline of employees;

• Descriptions of the appropriate avenues for re-porting bullying and the process you will follow in addressing the complaint;

• Prohibition on retaliation against employees who report bullying;

• A prescription for regular training;

• A reference to the availability of the agency’s em-ployee assistance program (EAP) for addressing concerns about workplace bullying; and

• A hotline for reporting bullying, harassment, or discrimination.

Sample policies and other relevant informa-tion can be found at http://publiclawgroup.com/publications/articles/workplace-bullying/.

California’s new workplace antibullying training requirements

Effective training is essential to prevent workplace bullying. A model for such training is California’s AB 2053, which requires employers with 50 or more

THE PUBLIC SECTOR

California Employment Law Letter

October 27, 2014 7

8, 2009. Then, when Kindt called in sick on November 19, Trango told him he was no longer needed. On No-vember 22, Kindt demanded payment of his regular pay through November 19, his unused vacation pay, his un-paid salary for the remaining portion of the six-month termination notice period specified in the offer letter, and waiting-time penalties for every day he wasn’t paid.

On November 28, Kindt received his final paycheck. It didn’t include pay for the six-month notice period or any waiting-time penalties.

On December 9, Kindt started a new job in San Diego at Convergence Technologies, Inc. (CTI). Three days later, Seaman called him and allegedly said he was under the impression Kindt had filed a wrongful termi-nation lawsuit against Trango and that if he dismissed it, the company wouldn’t interfere with his new employ-ment at CTI.

On December 19, Trango’s senior vice president and general counsel sent an e-mail to CTI, attaching the con-fidentiality agreement and a letter stating:

We are hopeful that you will do your part to ensure compliance with this Agreement by Mr. Kindt. To the extent that we learn that Mr. Kindt, while employed by CTI, has directly or indirectly solicited business from any Trango customer, has used any of Trango’s Confiden-tial Information, or has violated in any other ways his Agreement with Trango, we will seek all available legal remedies against CTI and Mr. Kindt.

CTI then called Seaman to discuss Kindt. Seaman gave the company the impression that it was “better off

just not hiring him . . . because [Trango] will take ex-ception to this if you do.” On December 22, CTI termi-nated Kindt because it was concerned about becoming involved in litigation with Trango.

Employee sues for unlawful nonsolicitation agreement and more

In October 2010, Kindt filed a lawsuit against Trango. He alleged that the offer letter entitled him to an additional six months’ employment or pay, Trango owed him waiting-time penalties for not de-livering his final paycheck on his last day of work, it attempted to enforce a nonexistent and unlawful non-compete agreement, and it wrongfully interfered with his employment at CTI.

During trial, the court ruled the confidentiality agreement was valid. The jury returned a verdict in Trango’s favor on all of Kindt’s legal claims, and the court denied relief on his equitable claims based primar-ily on the jury’s findings. Kindt requested a new trial. The court granted his request on all his legal claims based on alleged jury misconduct, but it refused a new trial on his equitable claims decided by the court. (Legal claims are generally for monetary damages. When legal remedies are inadequate, an employee may file equitable claims seeking specific relief such as an injunction or de-claratory relief.) Both parties appealed.

Employee challenges nonsolicitation provisions

Kindt argued that the trial court erred by denying his request for new trial on his equitable claims. He chal-lenged the court’s determination that the confidentiality agreement was valid. According to Kindt, the following

employees to add an “abusive conduct” component to the sexual harassment prevention training already required for supervisors. The two-hour training must be conducted by persons with proper knowledge and must provide interactive and practical educational guidance on abusive conduct and on federal and state laws governing sexual harassment. Showing a video will not suffice.

Bottom lineHere are three important points to remember:

(1) Jurisdictions that don’t have antibullying policies should consider the pros and cons of implement-ing one.

(2) In unionized workplaces, employers must give unions notice and an opportunity to request bargaining before implementing an antibullying

policy. Unionized employers also need to be sure their proposed policies are clear enough to

avoid interfering with employees’ rights to express themselves re-garding terms and conditions of employment.

(3) AB 2053 requires California em-ployers with 50 or more employ-ees to provide abusive conduct training every two years. New supervisors must receive training within six months of promotion or hire.

The authors can be reached at Renne Sloan Holtzman Sakai LLP in San Fran-cisco, jsloan@rshslaw.com and etilman@rshslaw.com. D

Sloan

Tilman

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