Labor and Employment Law

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 anti-bullying legislation:

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.

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  • Anonymous

    I will ask you the same question I posted In Mr. Yamada's blog. Why are virtually all the western industrialized nations except the U.S. non-at will? Here’s one theory, take a look at the racial demographic of these countries versus the U.S. Hmmm…Britain, France, Canada, Italy, Japan, others, have racial diversity of around 5% or less of their total workforce? In America that number is 30% or greater? Could it be that America is rabidly clinging to “At Will” for hidden discrimination pretext purposes? As an employee rights advocate I find one thing consistently amazing. What is that? The neolithic level of denial concerning the ingrained, institution of discrimination as a "way of life" in the American workplace just as in society. Your statements, "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." is false and true. The upsurging of discrimination complaints particularly race refutes the assertion of well treatment of employees. This increase is in the face of discrimination claims perpetually being #1 with the EEOC anyway. What is a "good" boss versus a "bad" boss when the overarching culture of "At Will" doctrine says I will fire you for any reason...especially if you are a person of diversity. Given the fact the "average" career seeker and employee has little or knowledge of their rights, when they are shown the door for some hidden pretext what then? They haven't been equipped in knowing how to recognize things like constructive discharge, retaliation. Will the know how to prove discrimination according to EEOC guidelines? Will they have a clue about the significance of Green V. McDonald Douglass and the doors that case opened? How's this for a perspective, a person is trained his whole to be a carpenter. He or she knows everything there is to know about carpentry, why? Because they have and do live the experience. Someone comes along and asks about nuclear engineering. Is the carpenter qualified to from experience of living to provide insight about nuclear engineering? Of course NOT. Also in principle, how is any American white male qualified to understand the insidiously blatant and hidden behind the scenes schemes of disparate treatment perpetuated through "At Will" employment doctrine that black males face in the workplace all day everyday? White America as a way of living will never endure this type of discrimination from cradle to the grave. Therefore to conclude that "At Will" is beneficial to the workplace ignores the truth about American society. Whites males stood around a table over 200 years ago declaring "All men are created equal". However, the truth then as now, "All men are not treated equal". The hypocrisy then was these same individuals were raco-terrorist slave owners. It s beyond time for a reality check it's time for this country and its workplace to check its reality. I applaud Mr. Yamada's article for exposing some realities about "At will" doctrine. In my opinion, get rid of Employment At Will and this country will see a dramatic decline in EEOC complaints across the board. Why? It will remove the marketplace incentive, comfort, and arrogance for biased employers to violate the rights of all employees. "At Will" should have been destroyed long ago.

  • Anonymous

    What is your solution to bad bosses who inflict such horrible treatment/abuse that it leads to an employee's deteriorating health due to the stress? Research points to stress causing or exacerbating innumerable health problems such as PTSD, depression, heart conditions, and gastrointestinal disorders. Aren't employers obligated to maintain a healthy and safe working environment for employees? If the employer's negligence caused a chemical spill that harmed the health of employees, OSHA would be on them like a ton of bricks! Workplace bullying shares much in common with domestic abuse. The similarities are uncanny. Not too long ago, people blamed the victim in domestic abuse cases until people woke up and realized they were vilifying the wrong person. It is time for employment-side professionals (HR personnel, employment lawyers) to wake up and realize that employers should be obligated to rid their workforces of abusive personnel. So far, many businesses have failed to be proactive to do so. Legislation is one alternative to force employers to make sure employees are protected. What is your solution, Mr. Hyman?

  • Anonymous
    The answer to bad bosses is policies and training, not more laws.