12/13/2011 11:49:00 AM EST
Bullying and At-Will Employment
David Yamada is a law professor and the director of the New
Workplace Institute at Boston's Suffolk University Law School. He is also the
author of the Healthy Workplace Bill, draft model legislation that, if
ever passed, would impose liability on employers for employees who are bullied
in the workplace, regardless of any protected status.
Yesterday, on his blog (Minding the Workplace),
Professor Yamada made the following argument in favor of generalized
In the U.S., the combination of at-will employment and
the lack of protections against workplace bullying make for a brutal combo
punch that often leaves mistreated workers legally powerless.... In America-in
contrast to many other nations-at-will is the presumptive employment
relationship. This leaves workers especially vulnerable when they are subjected
to severe workplace bullying by a supervisor, enabled by the employer. Because
most bullying falls outside the protections of current employment law, workers
have scant legal recourse, and employers have little incentive (at least from a
liability standpoint) to act preventively and responsively.
In other words, Professor Yamada argues that states need
to pass the Healthy Workplace Bill because at-will employees can be fired for
any (not otherwise unlawful) reason. This argument validates a point I made all the way back in May 2007: the passage of
anti-bullying laws will destroy employment at-will.
To quote another point I made just last year:
Employers who turn a blind eye to bullying ... are doing their
businesses and their employees a disservice. But, the issue is not whether
bullying impacts its victims. We can all agree that it does. The issue is
whether we need legislation that has the probability of turning every petty
slight and annoyance in the workplace into a lawsuit.... Indeterminate bullying ...
should be self-regulating, and not a tort that has the likelihood of
obliterating at-will employment by hamstringing supervisors and managers from
supervising and managing.
Businesses need to have the discretion to manage their
workforces. Anti-bullying laws will eviscerate that discretion. Just because
generalized bullying is not illegal does not mean that employers lack
"incentive to act preventively and responsively," as Professor Yamada argues.
To the contrary, the marketplace creates the incentive to treat employees well.
Bad bosses beget revolving-door workforces, doomed to failure. Good bosses
create loyalty and retain good employees, which breeds success. Imposing
liability merely for being subjected to a bad boss sets a dangerous precedent
that will eliminate the "at will" from all employment relationships.
Visit the Ohio Employer's Law Blog for more
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