BACKGROUND
Surveys and studies have shown that between 16 and 21 percent of employees nationwide have directly experienced adverse health effects associated with workplace bullying, abuse, and harassment. Notably, those studies further show that this behavior is four times more prevalent than sexual harassment alone.
According to the Workplace Bullying Institute, workplace bullying is defined as “repeated health-harming mistreatment of one or more persons (the targets) by one or more perpetrators, that takes place in the following forms: (1) verbal abuse; (2) offensive conduct/behaviors which are threatening, humiliating, or intimidating; and (3) work interference – sabotage – which prevents work from getting done.” Currently, New Jersey is considering a bill, the Healthy Workplace Act, aimed at preventing abusive harassment and bullying in all workplaces, and regardless of the motivating factor.
EXISTING NEW JERSEY LAW
While there are already New Jersey laws that provide employees redress for bullying and harassing conduct, they are very limited in scope. For instance, the New Jersey Law Against Discrimination (“NJLAD”) only prohibits bullying when it is clear that it is motivated by the employee’s membership in a protected class. Similarly, the Conscientious Employee Protection Act (“CEPA”) only prohibits bullying that is retaliatory in nature and must be directed at someone who has engaged in “protected conduct,” which is specifically and narrowly defined in the statute. As a result, even the most tormented employees will find it difficult to find an attorney who will accept their case if they are not members of a protected class or have not engaged in protected activity. The existing gaps in the law allow the equal opportunity bully to create a hostile work environment without any fear of reprisal.
PENDING LEGISLATION
With the passage of the Healthy Workplace Act, employees would have a private right of action against their employer and the workplace bully. The proposed legislation prohibits abusive conduct, which is defined as “malicious conduct of an employer or an employee in the workplace that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” Under the Healthy Workplace Act, a single act could not constitute abusive conduct unless it was especially severe and egregious. Further, the bill provides protection for employees against retaliation for bringing an claim pursuant to the Act. It is important to note that employers who actively correct and respond to bullying would have an affirmative defense to a claim under this Act. However, employers who do nothing to correct bullying behavior are subject to penalties of up to $25,000.
THE TAKE AWAY
With legislative efforts on the rise, employers should brace themselves for an upcoming change in the law by maintaining strong policies that prohibit bullying in the workplace. A strong policy prohibiting bullying in the workplace should: (1) establish clear boundaries for what constitutes workplace bullying; (2) explain in detail the consequences of prohibited behaviors; (3) inform employees about how to make a report; (4) encourage employees to report all incidents; and (5) create a consistent and uniform system that will be used for responding to complaints.
Taking these proactive measures will benefit employers by improving workplace productivity and morale, reducing costs associated with medical and worker’s compensation claims, and minimizing employee turnover rates. Likewise, employees will benefit from a work environment in which their employer is held accountable for harassing conduct and can rest assured knowing that they have a legal remedy that deters health-harming abusive behavior at work. Employers throughout the state should review their current workplace harassment policies, and work with counsel to confirm these policies are in line with the proposed bill that is likely to become law in the near future.
