Global Workplace Bullying Developments Continue during Covid-19

October 12, 2020 Ellen Pinkos Cobb

While the COVID-19 pandemic has brought many uncertainties to work in 2020, some noteworthy progress has been made recently to prevent bullying in the workplace, whether on-site or remote.

Global workplace bullying developmentsFreedom from Workplace Bullies week is Oct. 18-24. In this blog, I review new laws around the world that prohibit bullying in the workplace, as well as an international standard that will address violence and harassment at work that becomes effective soon.

At the same time, we are all leaning into this newly unfolding workplace future. Recognition of the importance of a culture of respect, in terms of prohibiting and preventing workplace bullying and harassment, continues to gain recognition in the world of work. As studies and research show over and over, workplace bullying harms both the organization and its employers.

Close to home: Puerto Rico adopts law against workplace bullying

Although none of the 50 states in the U.S. have yet enacted an anti-workplace bullying law, on August 7, 2020, Puerto Rico’s Governor signed into law the “Act to Prohibit and Prevent Workplace Harassment in Puerto Rico.” It became effective immediately.

This is a first and as such, it should be looked at closely. There is another reason: This law closely resembles the Healthy Workplace Bill, a state anti-bullying bill proposed so far in 30 states that’s moving closer to passage each year. Perhaps Puerto Rico’s action will usher in some state anti-bullying laws.

The act prohibits and prevents abusive conduct against employees in the workplace that affects worker performance, alters workplace peace, and threatens employees’ dignity. It requires the employer to adopt and implement internal rules and policies to eliminate or reduce the occurrence of workplace harassment, establish a procedure to investigate claims of workplace harassment and impose sanctions against those who violate the policies.

Workplace harassment is defined as actions and behavior that are: 

  • Malicious, unwanted, repetitive and abusive
  • Arbitrary, unreasonable or capricious
  • Verbal, written or physical
  • Performed repeatedly by the employer, his agents, supervisors or employees, oblivious to the legitimate interests of the employer’s company, are unwelcome, creat[ing] an intimidating, humiliating, hostile, or offensive work environment, not suitable for the reasonable person to perform their duties or tasks in a normal manner.

Puerto Rico’s law provides examples of what will be considered unlawful harassment and requires that the totality of the circumstances be considered. The employer will be liable for supervisors or other employees’ actions for conduct that is considered workplace harassment if they knew of the harassment and took no action. However, if the employer can establish that it took immediate and appropriate action to remedy and stop workplace harassment, it will not be held liable.

Puerto Rico’s Department of Labor is expected to issue guidance on the requirements employers should include in their policies soon.  

 

Although you don’t need a law against workplace bullying to create an organizational culture of respect, more laws are gradually taking hold throughout the world. As with sexual harassment, a law works not only to prohibit the abuse of power in the workplace, but to change perception, to turn what “is just the way the workplace is” to no longer the way it will be moving forward.

 

In Canada, workplace harassment regulations aim to create a respectful culture

Canada’s new federal Anti-Workplace Violence and Harassment Requirements were published in June 2020 and become effective on January 1, 2021. They require that employers take a more proactive approach to prevent and resolve incidents of workplace harassment and violence. Development of the regulations was based on goals which include changing the workplace culture of harassment and violence to create a culture change in the workplace where civility and respect are the standards.

The regulations require the employer to prepare a workplace harassment and violence prevention policy, working jointly with the policy or workplace committee or health and safety representative, assess the risk of workplace harassment and violence, train employees, participate in training themselves, and respond within seven days when harassment or violence is reported. 

Presently, Canadian federal law includes definitions for violence and sexual harassment, but not workplace harassment. Note, the majority of Canada is governed by provincial laws rather than federal.

Japan’s power harassment law is effective for large companies

In Japan, workplace bullying is called pawahara, a term meaning power harassment or taking advantage of one’s superior position in the workplace. A law requiring employers of large companies to establish appropriate measures to prevent power harassment became effective on June 1, 2020.

Employers with 49 or more employees must take preventive measures which include an explicit ban on power harassment, establishing an anti-harassment policy that is communicated to all levels of the organization, and providing a consultation service to enable employees to report or consult on power harassment-related issues. The government may issue administrative notices to companies who fail to comply with the laws and publicly disclose their names.

In accordance with this law, companies including Olympus and Sony Corporations have added rules against power harassment to their work regulations.

For small and medium-sized enterprises (generally those with 50 or fewer employees), the amendments will take full effect in April 2022.

Australia signals workplace bullying can occur with remote work

Remote work is not necessarily a shield against workplace bullying. Conduct such as excluding a worker from Zoom meetings and withholding resources and information necessary to perform a job, as well as unclear workplace boundaries and lack of instruction and supervision around appropriate behavior, can result in workplace bullying when someone is working from home.

In Australia, a decision of the anti-bullying tribunal, the Fair Work Commission (FWC), indicated that it would take bullying behavior while working from home into account. In February 2020, a worker who reasonably believed that he had been bullied at work by a coworker applied to the FWC to stop bullying. The worker began working from home in April and withdrew his application a couple of months later, stating the bullying was no longer occurring. 

In its August 2020 decision on the withdrawal, a Commissioner stated: The COVID-19 pandemic has dramatically altered the way that Australians have undertaken their work in 2020. I am satisfied that the Applicant believed that he had an arguable case for a stop bullying order when he submitted the Bullying Application. The fact that his normal place of employment changed so drastically in the following months does not automatically lead to the Bullying Application being extinguished.

First international labor standard to address violence and harassment on the horizon

An effective date for the first international labor standard to address violence and harassment in the workplace was recently set for June 2021. Adopted by the International Labour Conference in June 2019, Convention No. 190 is the first international labor standard to address violence and harassment. Countries will likely look toward this standard and its framework for action to formulate their individual national guidance on violence, harassment, and bullying.

It appears that one already has: South Africa published its Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work on August 20, 2020 for a 60-day public comment period. The Draft Code takes Convention 190 into consideration.  

The Draft Code lists four forms of violence and harassment in the workplace, including workplace bullying. Workplace bullying is defined as unwanted, persistent conduct (or a single incident) that is serious and demeans, humiliates, or creates a hostile or intimidating work environment. This conduct includes a wide range of insulting, demeaning, or intimidating behaviors that lower an employee’s self-esteem or self-confidence. Examples of workplace bullying include harassing, offending, professionally or socially excluding someone, or negatively affecting their work tasks. 

Although you don’t need a law against workplace bullying to create an organizational culture of respect, more laws are gradually taking hold throughout the world. As with sexual harassment, a law works not only to prohibit the abuse of power in the workplace, but to change perception, to turn what “is just the way the workplace is” to no longer the way it will be moving forward.

 


Additional reading: 

 


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About the Author

Attorney Ellen Pinkos Cobb is a Subject Expert on international sexual harassment laws for SAI Global, most recently advising on the creation of “Sexual Harassment: A Matter of Respect, Global Awareness” (March 2020). She is the author of International Sexual Harassment Laws for the Multinational Employer (January 2020) Routledge (Taylor & Francis Group) and Workplace Bullying and Harassment: New Developments in International Law (2017) Routledge (Taylor & Francis Group). She is a visiting researcher at Bentley University's Hoffman Center for Business Ethics.

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