Most Read Contributor in United States, September 2016
I have been conducting harassment prevention training for
California clients since AB 1825 became effective back in 2005. After
presenting what must be hundreds of sessions in the last decade, I
am always on the look-out for new topics to discuss, and new
hypotheticals to present, and sometimes the universe just
cooperates with me. Watching the second Presidential debate last
weekend was one of those experiences.
Since 2015 (AB 2053), California law has required
employers to train management on abusive conduct (also known as
"bullying"). While bullying is not yet illegal, it should
be against most employer policies, and should lead to discipline
for employees who violate those policies.
Bullying is defined as workplace conduct, with malice, that a
reasonable person would find hostile, offensive and unrelated to an
employer's legitimate business interests. The law goes on to
say that bullying may include:
Derogatory remarks, insults, and
Verbal or physical conduct that a
reasonable person would find threatening, intimidating, or
The gratuitous sabotage or
undermining of a person's work performance.
So let's consider the following hypothetical:
A group of managers is in a team
meeting where each person is supposed to present on their
enumerated topics to a group of colleagues. When one manager is
talking, the other one (who is physically larger) is pacing behind,
making faces, and making noises (something between a snort and a
grunt). The hands are gesturing and fingers pointing. The manager
pacing also repeatedly interrupts the colleague, either with snide
comments, jokes (which get laughs or cheers), or insults. Is this
Would a reasonable person find this conduct to be hostile?
Offensive? Unrelated to an employer's legitimate business
interests? Is this verbal or physical conduct that a reasonable
person would find threatening, intimidating or humiliating?
In fact, many employment attorneys and HR professionals I know
were physically uncomfortable while watching the debate, at least
in part because we were witnessing conduct that no reasonable
employer could tolerate. While we certainly cannot require free
speech to be polite or politically correct, we certainly can and
should agree that this type of bullying would not be okay in any
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As OSHA's enforcement relating to employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels to address this hazard.
Seyfarth Synopsis: Employers in California: be aware and prepare for new laws increasing minimum wages and mandating overtime pay for agricultural employees; expanding the California Fair Pay Act to race and ethnicity and to address prior salary consideration; imposing new restrictions on background checks and gig economy workers; and more. Small employers will be relieved the Governor vetoed expanded unpaid parental leave, but it will likely return in future sessions.
Just when employers were becoming more comfortable with the complex and lengthy Form I-9, Employment Eligibility Verification that was issued in 2013, the federal government has decided to turn up the heat.
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