2009 Professional Risk Symposium: EPL, E&O and Fiduciary San Diego, CA ~ April 29 & 30, 2009 Adding...

2009 Professional Risk 2009 Professional Risk Symposium: EPL, E&OSymposium: EPL, E&O

and Fiduciaryand Fiduciary

San Diego, CA ~ April 29 & 30, 2009

Adding Insight to Injury -- Adding Insight to Injury -- Understanding the Exposure of Understanding the Exposure of

Workplace BullyingWorkplace Bullying

SpeakersSpeakers

• Michael Lotito, Esq., Jackson Lewis

• Brett Rawitz, Esq., McDonald’s Corporation

• Gary Neidle, AIU Holdings

• Amy Oppenheimer, Esq., HR Expert

• Moderator: Katherine S. Catlos, Esq.

Kaufman Dolowich Voluck & Gonzo

AgendaAgenda

• Legal Overview

• Real Life Stories

• Human Resources Expert

• Claims and Underwriting Perspective

• Question & Answer

Bullying or Protected Bullying or Protected Status Harassment?Status Harassment?

• “Bullying is a systematic campaign of interpersonal destruction that jeopardizes [a target’s] health, career…it’s not mere incivility or rudeness. Bullying is a non-physical, non-homicidal form of violence.”

-From the Workplace Bullying Institute


• The following behaviors may count as bullying when they occur repeatedly for six months or more:– Giving the “silent treatment”– Refusal of requests for assistance– Receive little or no feedback on performance– Subjection to pranks– Taking or destroying resources needed by

the target to perform his/her job– Not giving praise to which the target feels

entitled


• In order to be illegal and actionable in court:– harassment must violate the target’s civil rights– Target must be member of a “protected status”

group:• Race• Gender• Ethnicity• Religion• Disability• Age• Sexual Orientation (e.g. California)


• Only 20% of bullying cases could potentially qualify as discrimination (Zogby Survey)

• Bullying is “status blind”

7

Current Legislation

“Each time bullying laws are resubmitted, legislators become more sensitized…when one state passes legislation, it’s going to make the argument all the stronger”

- Johan Lubbe, Jackson Lewis LLP White Plains, quoted on Workplace Bullying Institute website

Current LegislationCurrent Legislation• None has passed in the United States

– In 2009, legislation has been introduced in the following states:

• New York (also in 2008, 2007, 2006)• New Jersey (also in 2006-07)• Illinois• Oklahoma (also in 2007, 2004)• Vermont (also in 2008, 2007)• Utah • Connecticut (also in 2008, 2007)• Washington (also in 2008, 2005)• Montana (also in 2007)

– Legislation is pending in:• Massachusetts (also in 2005)• Nevada

Current LegislationCurrent Legislation

• New York Bills A 5414 & S 1823– “It shall be unlawful to subject an employee to an

abusive work environment.” (S 1823 § 762.)– “An employer shall be civilly liable for the

existence of an abusive workplace…” (S 1823 § 763)

• Affirmative defenses:– If the employer “exercised reasonable care to prevent and

promptly correct” the conduct and the plaintiff “unreasonably failed” to take advantage of such actions, and

– If “the employer made a negative employment decision…that is consistent with…legitimate business interests” such as firing/demoting for poor performance. (S 1823 § 764)


• New York Bills A 5414 & S 1823 (cont’d)– If the defendant is found guilty, the court

could order him/her removed from the plaintiff’s working environment

– Plaintiff could be rewarded reimbursement for lost wages, medical expenses, compensation for emotional distress, punitive damages, and attorney fees

– For bullying alone (no adverse employment decision), employer liability is capped at $25,000


• The following countries have anti-bullying laws in place: Canada (federal law applies only to

federal workers. Quebec and Saskatchewan have wider policies in place)

Sweden France South Australia (state)

Canada and Workplace Canada and Workplace BullyingBullying

• April 1999: A “bullied” worker goes on a shooting rampage at OC Transpo in Ottowa, Canada

• Coroner’s inquest recommended that federal and provincial governments “enact legislation to prevent workplace violence and that employers develop policies to address violence and harassment”

• January 2001: Canada Safety Council urged all Canadian jurisdiction to act on that recommendation

Canada and Workplace Canada and Workplace BullyingBullying

• Quebec Labor Standards, Section 81.18 “The objective of this legislation is first and foremost to

make employers and employees aware of psychological harassment in the workplace and to permit actions upstream in order to avoid a deterioration of the work environment for the employee.”

Sets a 90-day timeframe to file a complaint Defines harassment as “vexatious behavior that

manifests itself in the form of conduct, verbal comments, actions or gestures” of a repetitive, hostile or unwanted nature, which affect a person’s dignity and integrity and contribute to a hostile work environment

Unions and BullyingUnions and Bullying• New collective bargaining agreement covering

21,000 Massachusetts state employees represented by the SEIU and NAGE includes protections against workplace bullying.

• “Behaviors that contribute to a hostile, humiliating or intimidating work environment, including abusive language or behavior, are unacceptable and will not be tolerated.”

• Gives employees 90 days to report a bullying incident

• May be subject to grievance procedure, but no arbitration.

Success of LawsuitsSuccess of Lawsuits

• Thompson v. Tracor Flight Systems, Inc. (Court of Appeal, Fifth District, California) (2001)– Affirmed lower court decision for the plaintiff, where a

jury had found a continuous pattern of conduct that resulted in a hostile working environment.

– Thompson testified that her general manager “seemed agitated with her all the time” and that he used the term “wetback” in discussion with her, knowing that she was Mexican.

– Ruled that a reasonable employee in Thompson’s position would have been compelled to resign her employment.


• EEOC v. National Education Association, Alaska; National Education Association (U.S. Court of Appeals, 9th Circuit) (2005)

– Held that “offensive conduct that is not ... sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees.”

– Record showed a frequent pattern of the defendant, Harvey, “shouting in a loud and hostile manner at female employees. The shouting was frequent, profane, and often public.”

– Other bullying performed by Harvey included: standing behind female employees and watching them work for no reason, and once lunging across the table and shaking his fist at a female employee, among other incidents.


• Raess v. Doescher (Indiana Court of Appeals)– Affirmed lower court decision in favor of the

plaintiff, who was rewarded $325,000 for a claim of assault.

– Raess, a cardiovascular surgeon, had advanced on Doescher, a perfusionist, with clenched fists, and popping veins, shouting “you’re finished, you’re history.”

– Expert witness from Workplace Bullying Institute categorized the event as workplace bullying.


• Raess v. Doescher (Indiana Court of Appeals) Appeal affirmed that the phrase

“workplace bully” is entirely appropriate in presenting to a jury, and

Bullying may be considered an intentional form of infliction of emotional distress

Video ClipVideo Clip

When Bullying Turns Violent

• What is workplace violence? Workplace violence is any physical

assault, threatening behavior, or verbal abuse occurring in the work setting

A workplace may be any location, permanent or temporary, where an employee performs any work-related duty


• Examples of workplace violence: Verbal threats to inflict bodily harm

• Threat may be vague or perceived

Attempts to cause physical harm Verbal harassment Disorderly conduct Bringing weapons to the workplace


• Occupational Health and Safety Administration (OSHA) Guidelines Not a new standard or regulation Advisory in nature and informational in

content Intended for use by employers who are

seeking to provide a safe and healthful workplace through effective workplace violence programs

McDonald’s CorporationMcDonald’s Corporation

• Anti-Bullying Policies and Practices?

• Prevention of Workplace Violence Strategies

Video ClipVideo Clip

Workplace Bullying – The HR Workplace Bullying – The HR Expert’s PerspectiveExpert’s Perspective

How do you identify bullying?Repeated and intentional conduct

Unequal initiation and participation

The difference between a bully, a clown and a clod

Workplace Bullying – The Workplace Bullying – The HR Expert’s PerspectiveHR Expert’s Perspective

What is the difference between harassment - under state/federal law – and bullying?

- Is there a pattern of who is harassed?- Is there a pattern of when someone is

harassed?- Equal opportunity harasser


Why do bullies bully?

- Lack of self esteem

- Power dynamics

- Familial patterns of behavior

Why do victims get bullied?

- Lack of self esteem

- Power dynamics

- Familial patterns of behavior


Reasonable and typical HR responses to bullying (juries expectations)

- Articulated policy

- Prompt response - including evaluation of seriousness of facts and, as necessary, investigation

- Prompt and effective remedial action

Workplace Bullying – The HR Workplace Bullying – The HR Expert’s PerspectiveExpert’s Perspective

The employer should ask:

Would the conduct, if it occurred as alleged, violate any significant rule or expectation of employee conduct? (Note: the employer may need to gather information to answer this.)

If the answer is yes:

Prompt investigation ensues

Employee accused is put on leave if allegations are serious and/or more harm could occur.

Workplace Bullying – The HR Expert’s Perspective

HR Policies as an affirmative defense to liability:Faragher v. City of Boca Raton (1998) 118 S. Ct. 2257

Burlington Industries v. Ellerth (1998) 118 S. Ct. 2275-Clear policies - including reasonable complaint mechanism-Distributed widely-Training on the policies

31

Workplace Bullying – The HR Expert’s Perspective

• Investigations as immunity from liability:• Cotran v. Rollins Hudig Hall Intl., Inc. (1998) 17 Cal. 4th 93• Silva v. Lucky Stores, Inc. (1998) 65 Cal. App. 4th 256• Ghebreselassie v. Coleman Sec. Service (9th Cir. 1987) 829 F. 2nd

892, cert. denied, 487 U.S. 1234.• Cuenca v. Safeway S.F. Employees Fed. Credit Union (1986) 180

Cal. App. 3d 985.

• Action taken as a result of a good faith, thorough investigation that came to a reasoned conclusion insulates from liability for wrongful termination and/or defamation.


Coaching the bully:• Is he/she a true bully?

If so – clear consequences and heavy monitoring

If not – one-on-one coaching

• In either case – immediate, repeated, with follow-up.

Workplace Bullying – Workplace Bullying – The HR Expert’s The HR Expert’s

PerspectivePerspective

Hypo - Jim is a new janitor. He complains the older employees are hard on new employees. There are two leaders and the other four on the team go along. The employees hide the cleaning materials from him, won’t assist him when assistance is needed, tease him, and expect him to do the hardest work.

What are the potential liabilities? What should the employer do?


Hypo - Andrea says that her supervisor, Diane, is hyper-critical of her work. Diane “micro-manages” her by checking when she comes and goes, berates her for small mistakes (and does so in front of other employees) and makes snide remarks about what she wears. Andrea is distraught and thinking of going on leave.

What are the potential liabilities? What should the employer do?

ClaimsClaims

INSURANCE OF WORKPLACE BULLYING CLAIMS

• Although 49% of working Americans experienced or witnessed such events in 2007, only about 20% of all workplace bullying is legally actionable under current statutory or common law.

• Actionable bullying will present as Discrimination, Retaliation or as a Tort such as Intentional Infliction of Emotional distress (IIED); Defamation; Assault, Battery, or as a quasi-contract action such as Constructive Discharge or Intentional Interference with Employment Relationship ( IIER).


• Discrimination• Gender : Soto v El Paso Natural Gas Co. 942

S.W. 2d 671 ( Tex. Ct. App 1997), the Texas Court of Appeals reversed summary judgment for defendants on intentional infliction of emotional distress and statutory harassment counts where the supervisor’s conduct included fondling and ridiculing a female employee following her return to work from a mastectomy.

• Race – Takaki v Allied Machine Corp. 951 P.2d 507 (Haw. Ct. App 1998 ) the Hawaii court of Appeals reversed summary judgment for defendants where, the supervisor frequently called the plaintiff a “lousy f—king Jap”.


• Discrimination• Religion – In Lule Said v Northeast Security 2000

WL 33665354 (MCAD 2000 ) the Massachusetts Commission Against discrimination took “judicial notice of the emerging body of law relative to ‘workplace bullying’” in awarding damages to an employee who endured severe religious harassment because he practiced Islam.

• Sexual Harassment – Some courts are including evidence of non-sexual bullying in connection with hostile work environment claims. Williams v General Motors Corp., 187 F.3rd 553 (6th Cir. 1999). Also , Durham Life Ins. V Evans 166 F.3d 139 ( 3rd Cir. 1999 ).


• Retaliation – In 2006, a Vallejo , California High school teacher who sued the State Administrator and school district personnel recovered in excess of $545,000 in settlement related to allegations of retaliation for the teacher’s pursuit of discrimination claims.

• Conduct alleged to be bullying included repeated reassignments to teach different grades and courses, abuse of sick leave procedures and defamation


• Retaliation – • In Zimmerman, et al. v Direct Federal Credit Union, et al. Lawyers

Weekly No. 05-050-00, 29 M.L.W. 731 ( 2000 ) , the court upheld the jury’s award of $400,000 in punitive damages, despite the failure of the plaintiff’s sexual discrimination claim. The court found that the jury could have readily concluded that the defendant’s actions were a “deliberate, calculated ,systematic campaign to humiliate and degrade [the plaintiff] both professionally and personally “.

• In 2006, plaintiff Emelise Alendri and a co-worker at the University of New York’s Calandra Institute settled their discrimination for in excess of $1 million, despite the fact that the court dismissed their gender discrimination claim. The court found that the defendants actions, which included assigning Aleandri to an office without a telephone line for several years and her co-worker to a makeshift desk consisting of a plank of wood placed atop two filing cabinets with no computer or assignments to complete , supported a claim for retaliation and intentional infliction of emotional distress.


• Tort • Intentional Infliction of Emotional Distress – In Vasarhelyi v. New

School for Social Research , 230 A.D. 2d 658 (N.Y. App. Div. 1996 ) a New York appeals court reinstated the plaintiff’s claim where she had been subject to intense, lengthy interrogation, questions about her personal relationships and the “impugning both her honesty and her chastity”.

• In GTE Southwest Inc., v. Bruce, 998 S.W. 2nd 605 (Tex. 1999 ) the Texas supreme court affirmed a $275,000 award in an intentional-infliction-of-emotional distress (IIED) claim made by 3 workers whose supervisor repeatedly shouted profanities at them, physically charged at them, and pounded his fists and threatened them with termination over a 2 year period.

• The 3rd circuit court of appeals reversed a Summary Judgment for defendants in an IIED claim by an employee whose supervisor used a self-termed “root canal” in which she taunted berated and demeaned her and asked for her resignation repeatedly. Subbe-Hirt v Baccigalupi , 94 F3d 111 ( 3rd Cir. 1996 ).


• Tort

• Defamation – In a case involving “blog bullying”, the 1st U.S. Circuit Court of Appeals recently upheld a Staples manager's lawsuit in which he claimed he was humiliated after his manager sent a mass e-mail to roughly 1,500 employees, explaining that he had been fired for violating the company's travel and expense policy. Even though this was true, the court ruled that the e-mail was meant to single him out and humiliate him, and the company should not have identified him by name. Noonan v. Staples, 539 F.3d 1 (1st Cir. 2008).


• Constructive Discharge – In Hukkanen v International Union of Operating Engineers , 3 F3d. 281 ( 8th Cir. 1993 ) , the court ruled that where a supervisor “threatened to rape” the plaintiff , the plaintiff’s resignation was a “reasonably foreseeable consequence” of the action.


• Assault - The case most widely advertised as recognizing a cause of action for workplace bullying, however, was recently decided by the Indiana Supreme Court.. In Raess v. Doescher, 883 N.E. 2d 709 ( April 8, 2008 ) the Court ratified a $325,000 jury award to a hospital technician whose supervising physician, who had a history as a “workplace abuser”, confronted him with “clenched fists, piercing eyes, beet-red face [and ] popping veins”.

• Believing that the surgeon “was going to smack the s*** out of [him] or do something “, the technician backed up against a wall and put up his hands. The surgeon stormed past the employee, saying “you’re finished, you’re history “.

• The Court refused to find error in the trial court’s refusal to deliver a jury instruction proposed by the defense, which stated in part :“workplace bullying is not an issue in this matter, nor is there any basis in the law for a claim of workplace bullying. “

• The Indiana Supreme Court found that in determining the allegations of assault and intentional infliction of emotional distress, the behavior of the defendant was a central

• issue, and characterization of the defendant’s prior conduct as “workplace bullying” was appropriate to help the jury determine that..


• Other tort-based avenues of bringing actions involving workplace bullying have included : Battery ( hitting an employee ) and false imprisonment ( locking an employee in a conference room ).


• Other potential avenues for insurance Claims :

• a) General duty of the employer to provide a safe workplace under OSHA section 5(a)(1). [ NIOSH defines workplace violence to include verbal harassment ].

• b) Duties imposed by statute on public employers ( e.g. New York State Labor Law Section 27-b ).


• Duties imposed by negotiated union contract ( e.g. SEIU - negotiated “Mutual Respect” provision in its contract with Commonwealth of Massachusetts ).


• Typical EPL coverage will include coverage for “wrongful termination” ( including constructive termination ) ; “harassment” ( usually defined to include, but not be limited to, sexual harassment ); “discrimination” ( relating to, but not limited to all currently protected classes ); “Retaliation”; Defamation and employment-related Emotional Distress.

INSURANCE COVERAGE FOR BULLYING CLAIMS

• Thus, most current EPL policies will provide coverage for most currently actionable Workplace Bullying Claims.

• Some restrictions on coverage may apply to the quasi-criminal tort-based Bullying Claims such as Assault or Battery.


• Assault or battery conduct could be considered as intentional acts on the part of the bully, and thus difficult to completely insure under an EPL policy.

• The corporation’s supervisory interest will be insurable – but even where the employer is immune, co-workers can be held liable for “tortuous acts which they commit outside the scope of their employment, which are unrelated to the interest of their employer” Brown v Nutter, McLennen & Fish, 696 N.E. 2d 953 ( Mass. App. Ct. 1998 ) and O’Brien v New England Telephone & Telegraph Co. 422 Mass 686 (1996).


• “Bullies” accused of assault or battery-type behavior, however will want the same breath of coverage they currently enjoy under most D&O /EPL policies with regard to alleged criminal behavior: Defense though final adjudication. Indemnity is generally not provided for proven or admitted wrongful conduct.

• Such coverage will be increasingly important as the plaintiff bar begins to utilize the leverage this potential new cause of action has with regard to supervisory and management employees.

Bully Legislation and Insurance Coverage

• Most of the currently proposed Bully Legislation has been based on the model introduced by the Workplace Violence Institute.

• This caps employer liability for an abusive work environment at $25,000 ( absent adverse employment decisions ) but provides compensation for lost wages, medical expenses and emotional distress.

• More importantly, punitive damages and attorney fees are awardable. The latter will make this an attractive adjunct to any employment or discrimination suit for plaintiff counsel. Punitive damages, however, will exponentially ratchet up the cost of these Claims – both by presenting the potential for large damages, and by the potential of such an award to “split the defense” .

• Employers faced with alleged egregious conduct on the part of a Co-Defendant supervisory or management employee may be temped to focus the blame on their Co-Defendant in the hope of avoiding punitive liability by characterizing the the behavior as an intentional tort outside the co-defendants scope of employment.

Contract and Other Liability

• Coverage under the average EPL policy is unlikely to apply to Workplace Bullying prohibited by union contract or current statutes applicable to public employees.

• Violations of these standards are likely to result in grievances or fines, which are generally excluded from coverage under most current policies.

• Should such standards become more common, however, a market may develop for a policy extending to such liability.

• The violation of the norms established by these vehicles, however, may provide plaintiff counsel with additional weight with regard to Bullying Claims filed under other theories.

Carrier Response

• Currently, Claims arising out of Workplace Bullying are most likely “priced into” most carriers rates for EPL insurance as they must be brought in conjunction with currently underwritten exposures.

• As Workplace Bullying becomes increasingly recognized as an independent action, the numbers of such Claims can be expected to rise, swelling the already negative trend for EPL Loss.

Carrier Response

• Some Insurers may respond by raising premium or limiting coverage for Bullying Claims either by category ( sublimit ) ; exposure ( excluding punitive damages on such claims ) or by increasing Retentions or Co-insurance.

• Other carriers may seek market share by offering coverage specifically tailored to the new risk exposures.

• It is likely that Bullying exposure will become an underwriting criteria for all EPL providers.

Underwriting Considerations for Workplace Bullying

Exposure• A 2007 study by the European Foundation for the Improvement of

Living and Working Conditions found that industry sector exposure for bullying closely paralleled that of workplace violence.

• Leading the list for highest exposure were health, education and governmental entities. In the private sector only hotels and restaurants had a comparable level of incidents.

• Gender balance of the supervisory level of employees is not an indicator. The Workplace Bullying & Trauma Institute estimates that half of all perpetrators are women. A 2007 Workplace Bullying Institute study put female bullying at 40% of the total.

• Given the relationship between bullying and actionable claims, entities with high employee turnover, large numbers of discrimination or harassment claims or episodes or workplace violence would also appear to be at high risk for workplace bullying exposure.

• Organizations with substantial numbers of employees in some of the 13 states that have introduced ( if not passed ) ant-bullying legislation are also likely at higher risk than those located in other states.


Exposure

• . According to the Workplace Bullying Institute, less than 20% of US employers have policies prohibiting Bullying conduct. In contrast, in Australia, which has some statutory prohibitions on bullying, 79% of employers said they had policies in place.


Exposure

• Workplace Bullying prevention training is increasingly a part of standardized EPL training, and carriers are likely to begin to offer this as an addition to the traditional “value-added” services the provide to their Insureds.

UnderwritingUnderwriting

• Crum and Forster has announced new "Suite" 16 enhancements for Private Company Directors and Officers and Employment Practices Liability. Some new "Suite" 16 enhancements include unique coverage features such as disappearing D&O retention and "Bullying Legislation" extension to EPL coverage.

ConclusionConclusion

Thank you

2009 Professional Risk Symposium: EPL, E&O and Fiduciary San Diego, CA ~ April 29 & 30, 2009 Adding...

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