Supervisors May Face Liability if New Bullying Law Is Passed

May 4, 2010

On March 24, 2010, Wisconsin Assembly Representatives Kelda Helen Roys, Christine Sinicki, and Terese Berceau introduced 2009 Assembly Bill (AB) 894, which seeks to provide Wisconsin employees the right to file a lawsuit in state court over “bullying” behavior in the workplace. Among other things, the bill would allow employees to sue their employers and supervisors for compensatory and punitive damages and have their supervisors removed from the work area.

Facts
The bill seeks to regulate bullying in the workplace. The likely unintended consequence may be that the law will be used by disgruntled current and former employees to retaliate against goodhearted employers and supervisors. For example, under the law, employees could sue supervisors for the normal kinds of performance coaching, counseling, supervision, direction of work, and disciplinary action properly engaged in on a daily basis. How many times have you heard an employee describe a supervisor as “mean” or “out to get me” after the supervisor communicated reasonable performance concerns or exercised disciplinary action? It happens on a regular basis, even though the supervisor does nothing wrong.

Under the bill, employees could file suit based on their unfounded speculation, conjecture, or subjective beliefs. The parties would be forced to litigate whether the employer’s action was “bullying” behavior, forcing the employer to spend thousands of dollars to successfully defend itself. Regardless of the outcome, the employee could file new claims, including retaliation claims provided for under the bill, for future management decisions.

Wisconsin employees already receive broad protection under federal, state, and local laws. For example, Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act make it unlawful for covered employers to discriminate against individuals based on a protected class. As an additional example, the Wisconsin Worker’s Compensation Act allows employees to recover worker’s comp benefits for mental injuries caused by extraordinary stress in the workplace. There’s not nearly enough room in this newsletter to list and describe the many other laws providing protection to Wisconsin employees.

It’s noteworthy that courts have limited the kinds of mental injury claims that can be made against employers to those involving “extraordinary stress.” They’ve done so mainly to avoid opening the floodgates to fraudulent claims of mental injury, including work-related mental stress and anxiety. The pending legislation constitutes an “end run” around the “extraordinary stress” standard. It would allow employees to claim injury from derogatory remarks, insults, or threatening, intimidating, or humiliating conduct.

Bottom line
As one commenter noted, AB 894 paints another target on the backs of employers across the state. It would likely have a chilling effect on small employers that don’t have the resources to defend themselves against the many nonmeritorious claims that already occur. Additional similar legislation is unnecessary. You should consider contacting your local legislators to share your views on this proposed law. Read the bill in its entirety.

For more information about "Supervisors May Face Liability if New Bullying Law Is Passed," contact Troy D. Thompson at tthompson@axley.com or 608.283.6746.