Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.
Bullying isn’t limited to the schoolyard. Bullying in the workplace is also a hot topic among employment lawyers and human-resource professionals. One study states that 35 percent of employees are bullied at work. In general, if you are being bullied at work, you should document the bullying, try to constructively confront the bully and speak with HR if the bullying continues. If bullying is persistent, you should also consider looking for other employment.
Currently there are no state or federal laws in Nebraska that specifically address workplace bullying. However, in many situations, there are laws in place that employees can use to protect themselves against workplace bullying, from a legal perspective. Exercising your rights under these laws may not stop the bullying. But by exercising your rights under the laws described below you could force a smart employer to take some action against a bully. And by using these legal tools, you could also possibly expose your employer to a retaliation suit if you are fired after trying to stop a workplace bully.
1. Title VII and the Nebraska Fair Employment Practices Act: Both of these laws make it unlawful to harass a worker based protected classes such as sex, race, nationality, disability, age, and religion. If you are being harassed based on one of these factors, the law forces you to address these complaints with management in order for you to successfully bring suit. While it is difficult to win a harassment case in Nebraska, the fact that you must bring the harassment to the attention of management at least forces management to address the situation. If management is smart they will realize that they need to address the harassment or else they could be subject to legal liability. If management is enlightened, they will realize the cost of employee turnover and address the situation regardless of any potential legal liability.
Many people believe that harassment based on sexual orientation is not against the law in Nebraska. However, gays and lesbians in Nebraska may be protected from harassment in some situations under the legal theory of “sex plus” discrimination.
So what if workplace bullying is not based on a protected class? Even then, employees might have legal protections under three laws: the National Labor Relations Act; the Americans with Disabilities Act; and the Family and Medical Leave Act.
2. The National Labor Relations Act. The NLRA protects workers’ rights to act together to address workplace conditions. The NLRA applies regardless of whether a workplace is unionized. If a boss or co-worker truly is a bully, then other people will likely believe they are being bullied as well. By acting collectively, employees stand a better chance of remedying the situation. For example, in the case of Teetor v. Dawson County Public Power District, employees essentially forced management to fire a longtime supervisor who was notorious for bullying subordinates. The supervisor’s bullying was one of the reasons why employees tried to unionize. Since the employer did not want their employees to unionize, they fired the bullying supervisor.
…by acting collectively, employees give themselves legal protections against retaliation by complaining against a bullying boss.
Also by acting collectively, employees give themselves legal protections against retaliation by complaining against a bullying boss. Employees have no protection if they complain individually against a boss. The absence of other people complaining about a workplace bully could also lead a court to believe that what one person views as workplace bullying is really just evidence of a personality conflict or oversensitivity on the part of the employee.
3. The Americans with Disabilities Act and the Family and Medical Leave Act. If bullying is severe enough to either cause or aggravate a mental illness, an employee may be able to invoke the ADA and the FMLA. The ADA forces employers to make reasonable accommodations to employees with disabilities. In theory, an employee should be able to suggest an end to bullying on the part of the co-worker or boss as the reasonable accommodation. Also, by asking for an accommodation, an employee gives themselves legal protection against retaliation by their employer. Under the FMLA, an employee can take job-protected leave to treat a serious medical condition. Asking for FMLA leave can leave your employer open to legal liability if they wrongfully deny you FMLA leave or retaliate against your taking FMLA leave.
I hedge a little bit on the use of the ADA and the FMLA as anti-bullying tools. Employees who use the ADA and FMLA as an anti-bullying tools need to be confident that their situation is more than just a personality conflict with a boss or co-worker. An honest counselor or psychologist should be able to tell you this. It would also be helpful to get some confirmation of the bullying from co-workers and trusted friends. Employees also need to make sure that they aren’t using the ADA as an excuse for unsatisfactory performance and poor attendance. Defense lawyers are expert at sniffing out people using the ADA and the Family Medical Leave Act to cover up for bad attendance and poor performance.
But if an employee can clear those hurdles, it can make sense to ask for an end to bullying as a reasonable accommodation under the ADA. I think the NLRA is a better tool to deal with workplace bullies than the ADA, but sometimes co-workers are too afraid to support a colleague who confronts management.
Not every incidence of bullying can be remedied by these laws. Also, if you work for a small employer, your employer may not have to comply with fair-employment laws. However, before a bully forces you to quit, or before you do something out of anger that causes you to get fired, you should consult with a knowledgeable employment-law attorney.