by Alisa C. Boll Esq.
As the summer draws to an end, it’s time for a new school year to begin. Teachers are readying their classrooms and parents and children are shopping for school supplies and new backpacks. But not far away are the ongoing discussions in the news about bullying in schools. We primarily hear about this issue in regards to students bullying other students. New Jersey has already taken major steps to prevent bullying in schools with the Anti-Bullying Bill of Rights Act.
Under this law, training is required for most public school employees on how to spot bullying and mandates that all districts form a “school safety team” to review complaints. School superintendents are required to report incidents of bullying to the state Department of Education, which will also be grading schools and districts on their efforts at combating bullying. School employees are required to report all bullying incidents that come to their attention, whether they occur at school or not. Administrators who do not investigate reported incidents of bullying would be disciplined, while students who bully could be suspended or expelled. With this law in place, there are clear protocols for addressing the problem of student verses student bullying.
What we don't hear much about, is bullying in the workplace as it affects employees. Many people don't realize that bullying can be prosecuted criminally. The bullying would have to rise to a certain level to be treated as criminal conduct, for example, bullying that involves assaults, threatened violence, the taking of money or possessions from an individual, restraining someone, use of weapons and/ or vandalism. Admittedly, many cases of bullying do not rise to that level. But these non-criminal situations can also have consequences under the law.
Workplace bullying falls into a gray area in terms of liability. Several states have drafted legislation that would allow civil claims for those who can prove they were subjected to health-impairing bullying at work. Some insurance companies are even including workplace bullying in liability insurance policies. If a work injury occurs, egregious behavior or misconduct on the part of a supervisor might pierce the shield that generally holds workers comp as the exclusive remedy.
New Jersey has a very comprehensive state civil rights law, the Law Against Discrimination (LAD). The LAD prohibits unlawful discrimination by employers in any job-related action. The LAD deals with many types of discrimination and highlights certain “protected” categories, so it would not apply in all cases of bullying. Some of the “protected” categories are: race, color, nationality, religion, gender, age, perceived sexual orientation and mental or physical disability. Bullies often target victims who fall into protected categories under the law. In these specific cases, the bullies and those who know about their actions and fail to stop them can be prosecuted civilly under the LAD.
According to the Washington State Department of Labor & Industries, workplace bullying is defined as “repeated, unreasonable actions of individuals (or a group) directed towards an employee (or a group of employees), which are intended to intimidate, degrade, humiliate, or undermine; or which create a risk to the health or safety of the employee(s).” Bullying is different from aggression. “Whereas aggression may involve a single act, bullying involves repeated attacks against a target, creating an on-going pattern of behavior.”
Currently bullying is not illegal in the United States unless it involves harassment based on the “protected” categories previously discussed. Under workers’ compensation law, benefits are provided for work-related injuries. If the bullying does not result in an injury requiring medical treatment, though, there is no remedy. In extreme situations, bullying can lead to a stress-related workers’ compensation claim. In New Jersey, these claims are difficult to prove as compensable. Similar to treating bullying as a criminal conduct, these bullying related stress claims would have to rise to a severe level in order to be deemed compensable.
Workplace bullying is a problem and current discrimination and harassment laws rarely address bullying concerns. There are currently limited protections available if you are the victim of bullying, but that will hopefully change as legislators continue to draft laws aimed at protecting workers.
Alisa C. Boll is an Associate and member of Stark & Stark’s Workers’ Compensation Group. www.stark-stark.com.