Michael Moore, Esq. Director McKenzie HR Solutions Printer Friendly Version

Workplace Bullying Claims

Workplace “bullying” claims are on the rise. When these claims turn into lawsuits, the results can be stunning. Now is the time to review your practice policies and procedures, and your conduct, and that of any associates or managers who work for you.

Not long ago, the Supreme Court of Indiana upheld a $325,000.00 jury verdict for a hospital perfusionist against a cardiovascular surgeon. The claim: a single instance of assault. The actual language of the court deserves quoting:

We find the testimony from the plaintiff that the defendant, angry at the plaintiff about reports to the hospital administration about the defendant's treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and put his hands up, believing that the defendant was going to hit him, then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the room, momentarily stopping to declare to the plaintiff "you're finished, you're history."

In upholding the verdict, the Court cited evidence produced by the plaintiff that he suffered from major depression and had been unable to return to work because of the incident. The plaintiff’s lawyer presented evidence from an expert psychologist as to the effects.

Few of us realize that, under the law, an “assault” need not involve actual physical contact. That is a battery. There have long been common law causes of action available for recovery against extreme behavior, such as that for intentional infliction of severe emotional distress. However, the evidentiary burdens are quite high – and only applicable to a very narrow class of cases. The jury in the case in fact exonerated the doctor from the intentional infliction claim. He still, however, must pay the $325,000.00.

There even exists today a “Workplace Bullying Institute” that advocates on the issue. A recently completed survey by the institute resulted in the finding that upwards of 37 percent claimed to have been bullied at work, with 45 percent of those claiming continuing effects for more than one year.

A model “Healthy Workplace Act” is now pending in thirteen states. The law draws heavily on well-recognized cases addressing sexual and other harassment, and provides a specific cause of action for the new tort. When enacted, workers will not have to rely on common law claims such as assault. Conduct that will not rise to the level of an assault will expose the doctor to liability, so long as the evidence shows the conduct was “severe” or “pervasive” and created a “hostile, abusive or intimidating” work environment.

In representing employees, I always examine the potential for an assault, battery and false imprisonment claim against an employer where there is a particularly contentious separation. This can happen where the employer blocks the employee’s exit from any area – and can happen even if the employer has no intent of stopping the employee from leaving.

The danger in any of these claims is that the testimony of a single witness – in most instances, the plaintiff – is enough to at least require the judge to submit the claims to a jury. No need to over-react – convincing juries most often requires corroborating evidence. But there are some jurisdictions where the average juror is going to lean towards the “wronged” employee and against the “rich” doctor.

How do you protect yourself against these kinds of claims? First, consider your own behavior and conduct in the office. You may not even be aware of how your actions, voice and expressions impact those who work for and with you. Second, pay careful attention to the actions and conduct of supervisors and associate doctors.

 Review your policies and procedures. If your policies are “employee friendly,” that kind of documentation will go a long way to dispelling the effect of testimony from a former employee as to how bad the office environment really was.

 Our policies and procedures are specifically designed to require employees to take responsibility for their own behavior in the workplace. Failing that, the documentation created by implementing our policies and using our forms creates the nearly impregnable defense to harassment claims.

For example, our “Employee Concerns” policy encourages staff to make known their complaints in formal manner. This is augmented by the “Exit Evaluation” policy that provides a vehicle for the departing employee to make known any concerns. Unfortunately there are folks who only “recognize” that they have been wronged weeks or months after they have separated from an employer. The absence of any complaints contemporaneous with the separation makes it extremely difficult for the person to get a lawyer to take a case, let alone win the case if filed.

Take a good look at those working for you, and those who you may hire. This means that your hiring process must include contacts with former employers for insights. With the availability of companies that conduct thorough background checks at a modest cost, the best defense to a possible bullying claim is to hire only those whose backgrounds and histories eliminate the potential for that happening to you.

Mike Moore is ranked among the best in employment law and has been named one of the top 10 lawyers in Ohio. As Director of McKenzie's HRSolutions, Mike is the creator of the Employment Policy and Handbook, geared to providing dentists who are unsophisticated in the legal arena with a step-by-step policy manual.

Click here to hear Mike present “7 Elements of an Effective Employment Policy.” Email Mike at mike@thedentistsnetwork.net.

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