Apr 12 2010

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Bill would offer civil remedy for workplace bullying

By Jack Zemlicka, Wisconsin Law Journal

New Berlin plaintiffs’ attorney Shannon D. McDonald frequently gets calls from people who claim to be victims of an abusive work environment.

But unless the “bullying” is tied to sexual harassment, age or gender discrimination, the employment law attorney generally has to deliver bad news.

“In most instances I say, ‘Given the laws, there is nothing I can do for you,’” said McDonald, of Carroll & McDonald LLC.

That could change if Wisconsin becomes the first state to pass a law allowing employees to file suit in circuit court against an employer for workplace bullying.

Currently, workers’ compensation is typically the exclusive remedy for an employee with a claim against an employer. But Assembly Bill 894 provides that an employee can sue over an abusive work environment and potentially recover medical expenses, back pay, front pay, compensation for emotional distress, punitive damages and attorney fees.

Since 2003, 17 states have introduced similar proposals, but none have passed, according to the office of Rep. Kelda Roys, a sponsor of the Wisconsin legislation.

Mixed response

Plaintiffs’ lawyers view the proposal as closing a loophole in the law.

“It’s a way to make employers accountable and to provide a legal remedy for those employees who would otherwise have no remedy at law or legal recourse,” said plaintiffs’ attorney Theresa R. Gabriel.

The Cullen Weston Pines & Bach LLP lawyer called the legislation a “gap filler” for those employees who do not fall into a protected category.

“A lot of bullies are sophisticated and know not to invoke certain trigger words” that would suggest their bullying is driven by sexual or racial biases, she noted.

But Waukesha defense attorney Joel S. Aziere suggested the law would make employers targets for litigation.

He questioned the rationale of allowing employees to bring an action in circuit court, rather than going through an administrative process, which is the standard for other employment discrimination claims.

“It helps to have some agency facilitate claims and get responses from people,” he said. “This seems like it will just open the floodgates to cases being brought against employers.”

While the law prohibits an employee from recovering damages through both a workers’ compensation claim and a lawsuit — the plaintiff must choose one or the other — Aziere said there is still the possibility for some overlap.

For example, in a constructive discharge case, an employer might have to fight allegations on multiple fronts if an employee files a claim with the Equal Rights Division (ERD), but also brings a lawsuit in state court claiming workplace abuse.

The plaintiff could not “double-dip” on damages, but the employer would have to defend both the administrative claim over the discharge and the lawsuit over the atmosphere at work.

“Now, we have an exclusive remedy for workers’ compensation claims,” Aziere said. “This bill creates multiple avenues and battling on multiple fronts.”

Defense attorneys also conjecture that the proposal could offer a back door method for obtaining discovery in ERD claims.

“There is no discovery at the administrative level, [but] employees would now be able to use the court action to do discovery for the administrative action,” argued Aziere, of Buelow Vetter Buikema Olson & Vliet LLC.

The proposed legislation requires that suit be filed within one year “after the last act constituting the unlawful employment practice occurred,” but it does not limit how far back a plaintiff can then look.

Currently, an individual seeking to file an administrative claim with the ERD must do so within 300 days of the incident in question or the claim is barred.

Aziere said that the new law would be problematic because “it invites claimants to sit on claims, let them accrue and then fire off lawsuits against an employer.”

Wisconsin Defense Counsel President Catherine M. Rottier agreed that the law could encourage “spite suits” from employees who may be unhappy, but not necessarily victims of workplace abuse.

She and Aziere noted that many businesses already have internal policies which prohibit general workplace abuse of those individuals who are not part of a protected class.

“This just adds a layer of angst to the workplace,” said Rottier, of Boardman, Suhr, Curry & Field LLP.

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