Massachusetts Legislature considering laws to ban “workplace bullying”
Bill Belichick is considered by many to be the greatest coach in the history of the National Football League, including many people in Massachusetts. Over a 24-year career as their head coach, Mr. Belichick led the New England Patriots to six Super Bowl titles through a mastery of football strategy but also a stern, demanding, and disciplinarian coaching style. Leaders and managers in all walks of life have drawn inspiration from his approach.
Yet, Massachusetts lawmakers are considering legislation that might make his management style illegal.
Background
The Massachusetts Legislature has two bills under consideration, both of which would ban workplace bullying. The version in the House of Representatives was introduced in February 2023 by Reps. Jessica Ann Giannino (D-Suffolk) and Carol A. Doherty (D-Bristol), and is described as “[a]n Act to establish psychological workplace safety.” The Senate bill, also introduced last February, was put forth by Sen. Paul R. Feeney (D-Bristol and Norfolk) as “[a]n Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status while promoting healthy workplaces.” Both bills advanced through the Joint Committee on Labor and Workforce Development and are now under consideration by the Senate Ways and Means Committee.
These bills, if signed into law in anything resembling their current form, would have a dramatic and negative effect on employment in Massachusetts. The bills would not only effectively end at-will employment, they would make illegal large swathes of conduct previously permitted and in some cases well within the bounds of normal management conduct, thus imposing workplace civility rules not seen in any other state. The bills would lead to an immediate and dramatic increase in the number of new lawsuits against employers every year, crippling the already overburdened court system, and have a chilling effect on employment and entrepreneurship in the Commonwealth.
The House bill is the more expansive – and, frankly, absurd – of the two bills. The bill makes it an unlawful employment practice for an employer to engage in the “psychological abuse” of an employee. “Psychological abuse” is defined as “mentally provocative harassment or mistreatment that has the effect of hurting, weakening, confusing or frightening a person mentally or emotionally.” The bill further provides a long list of “[b]ehaviors that constitute psychological abuse,” including but not limited to the following:
Subtle or blatant unethical and unprofessional behavior directed in a targeted or systematic manner such as sabotage; misrepresentation of employee performance or behavior; spreading of lies; discipline that does not follow procedure; withholding of vital information; verbal or written abuse or abusive gestures; frequent request for work below competence level; long-term assigning of tasks beyond the employee’s duties without compensation; requesting to take part in illegal activity; public or group humiliation or degradation; consistent taking credit for work; public ridicule; exclusion from work related gatherings or communications; inconsistent following or enforcement of rules; placing in dangerous or physically threatening working conditions; hostile yelling, shouting or physical gestures and postures; outright physical abuse, such as pushing and shoving; looking into or disclosing of private facts about the employee or their family; behaviors without just cause, degrading role changes that could jeopardize future career prospects, exclusion, physical isolation, ignoring, regular inconsistent instructions, unreasonably heavy workloads, unreasonable put downs, excessive monitoring, threat of dismissal, removal of job duties, tampering with or spying on equipment or personal belongings.
The above list clearly implicates practices and behaviors—some of them entirely appropriate--that occur in workplaces every day. Although many of them are not recommended – and certainly might make for a poor work environment – several are perfectly reasonable actions for employers to take in certain circumstances, such as withholding of information, assigning additional tasks without additional compensation, exclusion from communications, investigating employees, imposing heavy workloads, threatening termination, and removing job duties. Many others fit into grayer areas and could be subject to multiple interpretations for which it could be hard to draw a legal line. The definitions would also outlaw conduct that is already prohibited, such as requesting that employees take part in illegal activity and placing them in dangerous or physically threatening working conditions.
The bill would also seek to hold employers responsible for the “psychological abuse” of an employee by another employee even if the abuse occurs “outside the course or scope of their work.” This means that employers could be legally responsible for employee “abuse” that occurs after hours – for example, at a bar or at a private home.
There’s more. The bill also seeks to restrict employers from requiring mediation or arbitration of disputes, which would threaten to overwhelm the already stressed court system and put judges and juries in the untenable position of having to serve as “super personnel departments” for employers, a role that courts across the country have steadfastly refused to take on, and with good reason. In addition, employers would be required to develop, implement, and follow policies for preventing, investigating, and resolving allegations of abuse, including through the required use of a “neutral third-party fact-finding professional investigation.” That investigation is coupled with lengthy anti-retaliation and due process protections for the accusing employee. Annual workplace climate surveys would be mandatory. The bill permits employees to file a complaint with the federal Occupational Safety and Health Administration and even seeks to obligate OSHA to take action on the complaint (the Supremacy Clause be damned). And, of course, all of this is enforceable through a private right of action in which the aggrieved employee can recover the greater of actual damages or $5,000 per violation, plus attorneys’ fees.
The Senate Bill, while still outrageous, fortunately is more circumscribed than the House bill. The Senate bill provides that “[n]o employee shall be subjected to an abusive work environment.” “Abusive work environment” is defined as “an employment condition when an employer or one or more of its employees, subjects an employee to abusive conduct that causes physical harm, psychological harm, or both.” “Abusive conduct” is defined as follows:
intentional acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct, including, but [] not limited to: repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance. It shall be considered an aggravating factor if the conduct exploited an employee’s known psychological or physical illness or disability. A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard. Online communications shall be included in determining whether abusive conduct has occurred.
This bill also provides employees with a private right of action but does not contain the regulatory and procedural requirements of the House bill.
Stop the insanity
The two bills now face the potential process of being reconciled and pushed along for further consideration in the Legislature. That prospect should frighten any employer with employees in Massachusetts. As described above, these bills would prohibit all kinds of standard methods by which employers operate their businesses and regulate their employees. And many of the “objectionable” practices are necessary – or at least appropriate – in the dynamic business environment of Massachusetts, including perhaps winning football games.
If enacted, any law resembling either of these bills would be subject to legal challenge. Most notably, the definitions of “psychological abuse,” “abusive work environment,” and “abusive conduct” may be unconstitutionally vague. In other words, they are not sufficiently clear in advising employers of potentially illegal conduct, resulting in the possibility of arbitrary enforcement which infringes on due process protections.
Abusive work environments that do not cross anti-discrimination boundaries are of course still bad. But these bills are not the answer: A dynamic and free labor market is. The United States is in the midst of an ongoing tight labor market, which has seen job vacancies exceed job seekers, a shortage of qualified workers, and upward pressure on wages. Employers should create good workplaces in order to attract and retain talented people. If they don’t, employees will leave for better jobs, and the business will suffer. No government intervention required.
