Reading this article made me think, as I often do, of a thought experiment.

Here it goes– think about your answers to the following questions:

(1) How many individuals, yourself and/or others, do you know of who filed a lawsuit against a corporation?

[I bet your answer is very few].

(2) How many of those individuals were found by the legal system to have a frivolous claim?

[I bet your answer is zero].

(3) How many individuals do you know who in effect “won the lottery” and walked away with a big payday as a result of their lawsuit? (This being individuals you KNOW FIRSTHAND won what you think– people routinely gossip, second hand about individuals supposedly winning far, far more than actually occurred).

[I bet your answer is zero, or very few].

(4) How many individuals do you know of who have lost $500 or more as a result of a corporation’s careless or intentional conduct?

[I bet your answer is far more people than your answers to 1-3 combined].

Ms. Lipsen writes:

Wisconsin legislators are considering enactment of a bill, 2009 Assembly Bill 894, that prohibits workplace bullying by employers.

The bill seeks to prohibit abusive work environments in Wisconsin, and to allow a worker subjected to such an environment to bring a civil legal claim.

Importantly, a civil claim would be filed in a Wisconsin county court, as opposed to federal court or an administrative agency like the Wisconsin Equal Rights Division or EEOC (i.e. agencies that handle discrimination complaints).

This post summarizes the bill, its legal requirements, its potential benefits for WI employees, and potential liabilities for employers.

• Prohibited Employer Conduct: Abusive Conduct that Causes An Employee Tangible Harm. The bill prohibits Wisconsin employers from directing “Abusive conduct” toward any employee that causes the employee “Tangible harm.” (When an employee is subjected to abusive conduct that causes tangible harm, this constitutes the so-named “Abusive work environment” that would be legally prohibited– if the abusive conduct is an isolated event and not severe, or if the abusive conduct does not cause tangible harm to an employee, there would be no legally-actionable “Abusive work environment”).
  • “Abusive conduct” is defined to include “repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets; verbal or physical conduct that is threatening, intimidating, or humiliating; sabotage or undermining of an employee’s work performance; or exploitation of an employee’s known psychological or physical vulnerability.”
  • “Abusive conduct,” according to the bill, “does not include a single act unless that act is especially severe or egregious.”
  • Abusive conduct is legally prohibited, and provides basis for a legal claim, if it causes any employee to suffer “tangible harm.”
  • “Tangible harm” is defined as “any material impairment of a person’s physical or mental health or bodily integrity.” (In other words, an employee found to be unlawfully abused would likely have shown medical evidence of physical or psychological injuries– e.g. medical records showing conditions such as anxiety diagnosis, heart problems, etc., that a health professional attributes to the employer’s abuse).
• Retaliation is also prohibited. An employee can bring a legal claim if the employer retaliated against the employee because he or she:
  • opposed an unlawful employment practice (e.g. the employee was fired because she told the employer she opposed its abusive conduct toward other employees);
  • initiated, testified in, assisted in, or otherwise “participated in an investigation, action, or proceeding to enforce a right under this section, including any internal investigation or proceeding, any mediation or arbitration proceeding, or any court action.”

• One-Year Deadline/Statute of Limitations. There is a one-year deadline for an employee to bring a legal claim.  This deadline period starts ticking “one year after the last act constituting the unlawful employment practice occurred or be barred.”  (From this language, it appears this would be a continuing-violation type claim, in which a complaint timely filed within one year of the last act would claw back to cover prior associated/continuous acts).
• Relief/Legal Awards. Relief (legal awards) to an employee could include:
  • The court enjoining the employer or abuser-employees from engaging in abusive practices;
  • reinstatement of the aggrieved employee who had been subject to abuse and discharge/demotion/etc.;
  • removal of the person who engaged in the abusive conduct giving rise to the unlawful employment practice from the aggrieved employee’s work area;
  • medical expenses;
  • back pay;
  • front pay;
  • compensation for emotional distress;
  • punitive damages; and
  • reasonable costs and attorney fees.

• Personal Liability. Abusive employees could be sued in their personal capacity, along with the employer, although there are potential limitations and affirmative defenses (see below).
• Affirmative Defenses. Accused employers and accused abuser-employees would have affirmative defenses to avoid or reduce liability.  These include affirmative defenses:
  • where the employer exercised reasonable care to prevent and promptly correct the abusive conduct at issue;
  • where the aggrieved employee unreasonably failed to take advantage of appropriate opportunities provided by the employer to prevent or correct that abusive conduct;
  • where an adverse employment action against the aggrieved employee (e.g. discharge) and the employee’s complaint is actually based on poor performance, a reasonable performance evaluation, misconduct, economic necessity, and/or a reasonable investigation of a potentially illegal or unethical activity by the employee;
  • where an employee who is alleged to have engaged in an unlawful employment practice (e.g. a manager accused of abusive conduct) may plead as an affirmative defense that the employee engaged in that practice at the direction of the employer under threat of an adverse employment action against the employee for not engaging in that practice.  (This particular affirmative defense would help the accused abusive-employee avoid personal liability, but would not help the employer giving abusive directives to avoid liability).
• Right to Jury? It appears that claims and relief could be decided by a judge rather than a jury, given the bill’s frequent references to a “court” deciding relief.
• Limited Relief Where No Adverse Employment Action. If an abused employee, despite suffering “tangible harm,” does not also suffer “an adverse employment action” (namely, discharge, demotion, suspension, or other form of pay loss), then “the employer’s liability for compensation for emotional distress may not exceed$25,000 and the employer is not liable for punitive damages.”

• No Preemption By Workers Comp Laws. The bill explicitly says that workers comp law would not preempt (block) these new bullying-law claims; workers comp law has, in general, traditionally barred other (non-workers comp) claims involving emotional or physical injuries caused by work or by an employer.  The new WI anti-bullying-law claims could be pursued along with a WI workers comp claim, although the award for the anti-bullying claim could be reduced based on a workers comp award.  This would limit double-dipping that could have otherwise resulted from pursuing both types of claims/legal theories.

This completes the summary of the bill.  I will post a second article (Part II) that speculates about the real-world effects of this bill were it to become law.

DISCLAIMER: The information in this blog is not legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney (and an employment attorney for employment matters).

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.

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As a general matter, I believe that most of us don’t know much about most of the issues we talk about.  How could we?  There’s hardly enough time for someone to become an expert in one area of knowledge, much less for all the issues that affect us and that merit discussion.  Whenever we start feeling righteous about something we think we know well (whether the topic involve religion, politics, law, etc. etc.), it’s probably good that we remind ourselves there is so very much we don’t know.

Conservatives—particularly extreme-side-of-the-party folks like Rush Limbaugh and Newt Gingrich— are often criticized by progressive folks for communicating in a hateful way.

I agree any negative or hateful communications by Limbaugh and Gingrich should be open to criticism. But what is more disconcerting to me are those progressives who do not recognize when similarly negative or hateful tones inflict our own demeanor (as they easily and instinctively can) when we encounter people holding beliefs (like extreme-end-political beliefs) with which we disagree.

I should mention that I have my own body of unfortunate literature—dating back to my grade school days—where I have written things that were very negative and disparaging toward others with whom I disagreed.   Heck, this post probably goes too far.  So I am not putting myself on the high horse here by any means. Rather, I’m asking others to consider joining me on the big bus called work-in-progress.

It is one thing for a progressive to politely—and strongly— dispute an opposing viewpoint or policy, especially if it is important, empirically incorrect, or both. But it is quite another thing to needlessly make the disagreement personal, and question the other person’s motives or character.

And it is another thing still to completely avoid self-reflection on our own communication style, as if the fact that we are right on the merits (we think) provides a ticket to not only describe the merits, but to further elaborate in a righteous, condescending and/or hypocritical tone about why our opponent is deserving of condemnation, name-calling, and in some cases, violence.

Consider these excerpts of progressive authors’ communications, which are all from today’s (6-11-09) Huffington Post, a progressive blog:

(from a blog header by a progressive blog author): Death at the Holocaust Museum and the Degradation of the American Dialogue… There is no Environmental Protection Agency to measure hate pollution in national dialogue, and no mechanism in place to warn us when the poisonous rage spewed into the national consciousness by shock-jocks, poisonous television pundits, megachurch leaders, and oh-so-subtle politicians, has reached dangerously toxic levels. No, there is only the result: widows, orphans, collective grief, and an absolute refusal on the part of our loudest, coarsest voices to take any responsibility for their part in the carnage. Click here to read more….

…

(blog header by another progressive blog author): The Health Insurance Mafia Deserves a Good Screwing …

…

(blog header by another progressive blog author): Sexism Against Conservative Women Is Still Sexism

…

When progressive readers of a hugely-read and influential blog need a reminder that conservative women are just as entitled to human dignities as progressive women, it’s high time for progressives to get off our high horses real fast.

The Huffington Post, to its credit, also has a blog post today by Russell Simmons- which couldn’t be timelier- titled “Cleansing the Hatred From Within.”