Workplace Bullying Handbook Statement: California
When to Include
Although federal and California law do not prohibit workplace bullying, such bullying can expose employers to liability for workers' compensation, discrimination or various other claims. Workplace bullying can also lead to a loss in employee productivity, undermine employee morale and create a lack of trust in the employer. In addition, California employers with 50 or more employees are required to add anti-bullying training into their current sexual harassment training curriculum. California employers should consider including this statement in their handbook as a significant step toward eliminating bullying and abusive behavior.
Customizable Handbook Statement
The Company does not tolerate bullying behavior. Individuals who engage in workplace bullying may be disciplined, up to and including termination of employment.
Workplace bullying is the use of force, threats or coercion to abuse, intimidate, or humiliate another employee. Workplace bullying includes, but certainly is not limited to, the following:
- Verbal abuse, such as the use of patently offensive, demeaning and harmful derogatory remarks, insults and epithets;
- Verbal or physical conduct that is threatening, intimidating or obscene;
- Pushing, shoving, kicking, poking, tripping, assaulting, or threatening physical assault, or intentionally damaging a person's work area or property; or
- Sabotage, or deliberately subverting, obstructing or disrupting another person's work performance.
Cyberbullying refers to bullying, as defined above, that occurs through the use of a computer, cell phone, smartphone, tablet, pager or other device that transmits electronic information, regardless of whether the device is owned by or located at the Company or connected to the Company network. Cyberbullying is also prohibited.
This policy in no way prohibits employees from engaging in activities that are protected under applicable state and federal laws, including but not limited to any activity that is protected under Section 7 of the National Labor Relations Act, which includes the right of employees to speak with others, engage in workplace debates and protest about their terms and conditions of employment.
Reporting and Response
Employees who are subject to or witness workplace bullying are encouraged to notify Human Resources [or insert name/contact details of appropriate company representative or department] immediately. The Company will promptly investigate the complaint. The Company will maintain confidentiality to the extent possible, consistent with its commitment to investigating the complaint promptly and thoroughly.
If the complaint is verified, the Company will take appropriate remedial and disciplinary action, which may include, but is not limited to, verbal or written warnings, suspension, termination of employment, counseling and other actions. The Company will also report to law enforcement, if appropriate. The complaining party will be advised of the results of the investigation.
The Company strictly prohibits retaliation against an employee for making a good-faith claim of bullying or for participating truthfully in an investigation of bullying.
Guidance for Employers
- Federal law does not specifically define what constitutes bullying nor does it specifically prohibit workplace bullying.
- Liability for workplace bullying can arise under the legal theories of intentional infliction of emotional distress and negligent hiring and/or a workers' compensation claim.
- Effective January 1, 2015, California employers that employ 50 or more employees must add anti-bullying training into their current sexual harassment training curriculum.
- On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) released guidance (the "Report") wherein the NLRB indicated that workplace rules that infringe on employee rights to argue and debate with one another about unions, management and workplace conditions may be unlawful, even when those debates involve terms or tactics that are intemperate, negative, inappropriate, etc. As a result, prohibitions against negative, inappropriate or generally harassing conduct may be considered unlawful. Employers should consult with legal counsel to ensure that their workplace bullying and other personnel policies do not unlawfully infringe upon employee rights under the National Labor Relations Act (NLRA).
- The anti-bullying training provision does not create a private right of action against the employer for employees to seek damages for workplace bullying. However, if an employee is bullied because he or she belongs to a protected class under the Fair Employment and Housing Act (FEHA), e.g. race, gender, religion, disability, then the employee may have a claim for harassment or discrimination.
- Additionally, if the employer does not include the anti-bullying provisions into the required sexual harassment training, an argument may be made that the employer failed to take all reasonable steps to prevent workplace harassment or discrimination.
- Define bullying in the policy and provide examples. When defining and providing examples of bullying conduct, be careful not to include vague terms that may be overbroad or reasonably interpreted as prohibiting activity protected under the NLRA. For example, the NLRB has struck down rules that generally prohibit harassment or that prohibit disrespectful, offensive or inappropriate conduct.
- The new California law defines bullying as "abusive conduct" - "conduct of an employer or employee in the workplace with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. [It] may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance."
- A single act does not constitute "abusive conduct" unless it is severe or egregious.
- Include a statement of zero tolerance for cyberbullying through company resources.
- Provide procedures for employees to report bullying.
- Emphasize the employer's prohibition against any type of retaliation against anyone who, in good faith, reports bullying or participates in an investigation of bullying.
- Train supervisors to recognize and act on instances of bullying.