Over the past several weeks, news outlets have covered (from virtually every angle) the deplorable conduct of some prominent NFL players; Adrian Peterson (of the Minnesota Vikings) and Ray Rice (of the Baltimore Ravens) are among the most notable. Their abusive conduct and tendencies, when translated into a highly aggressive, take-no-prisoners workplace (the football field), works. Football players are paid to entertain, to be aggressive and to win at all costs. At least that is what coaches and NFL leadership may seem to believe.
But this same conduct, when put under the microscope, and examined in the context of a more normal work environment, is wildly unacceptable. No organization would stand behind a CEO who has battered his wife, or abused his child. The organization would instead take swift and decisive steps.
What employers should take note of is that abusive personalities, like Rice and Peterson, don’t check their natural, “true self” at the door. They bring their entire self into the workplace—your workplace.
Abusive Conduct Demoralizes Employees and Drains Productivity
According to the National Domestic Violence Hotline,“…[n]early 3 in 10 women (29%) and 1 in 10 men (10%) in the US have experienced rape, physical violence and/or stalking by a partner and report a related impact on their functioning.” And this abuse and violence can spill over into the workplace, whether you employ the victim or the abuser.
See our complimentary AB 2053 Legal Brief
While your employees may not receive media coverage like Rice and Peterson, abusive conduct is draining your workplace of productivity. Don’t think that abusive conduct is impacting your employees? Consider these statistics published by the Workplace Bullying Institute (WBI):
- 65 million workers have been affected by workplace bullying.
- 27% of workers are either currently being bullied (7%) or have been bullied (20%).
- Countless others have witnessed bullying, or are aware of it where they work.
- In some cases it's the boss (56%) and other times it’s coworkers (33%) who are engaging in the misconduct.
Workplace bullies have been demoralizing employees, making their victims sick, sucking productivity from the workplace, and generally making the workplace a crappy place to be on a daily basis for all too long.
Even though 93 percent of Americans support passing a law that makes abusive workplace conduct unlawful, of the 26 states that have tried to get laws on the books, most have failed. The two that have passed laws (Tennessee and California) have laws that have very limited reach and impact.
Is the Legal Tide Turning? Tennessee and California Take a Step Forward
In May of 2014, Tennessee was the first state to adopt a law prohibiting abusive workplace conduct. Although the law is narrow in scope and applies only to public employees, it is a step in the right direction. The law is designed to “curb verbal abuse at work by making public-sector employers immune to bullying-related lawsuits if they adopt a policy that complies with the law.”
In August 2014 California’s governor signed AB 2053 into law. The new law requires employers to cover “abusive conduct” in their harassment prevention training, which is required under AB 1825. Notably, AB 2053 requires training, but does not make abusive conduct itself unlawful.
California Employers (and all Forward-Thinking Organizations): Ensure Your Training Includes Abusive Workplace Content
Whether you believe that abusive conduct should be prohibited at work or not, California employers must now address it in their harassment training (as required by AB 1825). AB 1825 requires employers to provide two hours of harassment training to managers every two years, and to new managers within 6 months of hire or promotion. The new AB 2053 training requirement imposes an additional obligation on organizations and is not intended to replace content that is part of the two-hour harassment training obligation.
So what’s abusive conduct, according to AB 2053? “Abusive conduct” means,“…conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”
And like harassment, a single act is not abusive conduct, unless of course it’s “severe and egregious.”
The descriptive language of AB 2053 is limited but very broad and includes the following categories of conduct:
- Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets,
- Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or
- The gratuitous sabotage or undermining of a person’s work performance.
To effectively cover this content in a harassment course, organizations will need to add new content to their existing AB 1825 compliant training programs. It will be important for organizations to:
- Draw a distinction between prohibited harassment and abusive conduct (which is not technically unlawful harassment);
- Explain to managers that abusive conduct is not tolerated and must be addressed;
- Help managers understand how to spot abusive conduct;
- Help managers understand how to respond when an employee raises a concern about abusive conduct; and
- Hold employees and managers accountable when they engage in abusive conduct.
Addressing Workplace Bullying: Six Steps to Take
It’s not just covered employers in Tennessee and California who should be addressing workplace bullying. Workplace bullying is a drain on productivity and employee morale for all organizations. Left unaddressed, workplace bullying and abusive conduct can quickly—and often does—escalate into unlawful harassment.
Last year’s incident involving NFL player Richie Incognito demonstrates the devastating toll that bullying and harassment can take on people. Incognito’s primary target, Jonathan Martin, eventually stopped playing for the Dolphins because of the severe mistreatment he experienced.
Some simple things employers can do to address abusive workplace conduct include:
- Adopt a clear anti-harassment and bullying policy and set of expectations around abusive conduct and bullying.
- Train managers and employees about what is expected of them (yes, I realize that this should be obvious to them but it’s not). Consider deploying short-form or anti-harassment burst training, deploy a full-length course on workplace violence prevention, or add content to your current workplace harassment training.
- If you have employees and managers whose abusive behavior has been tolerated, let them know that the rules are changing and they are expected to adjust accordingly.
- Educate employees and managers about how and when to make a report about abusive conduct.
- Investigate all allegations of abusive conduct thoroughly and promptly; hold employees and managers responsible when they violate rules.
- Assess your workplace culture—find out if bullying and abusive conduct continues to be an issue, and then devise a plan to improve your approach.
If you're unsure if your current anti-harassment and workplace bullying policy meets current standards, please reach out to one of our ethics and compliance experts today.