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Dec 07 2010

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Never Mind Co-worker Sabotage – What if I’m Dealing with a Bully Boss? Part One

By Lisa Quast, Forbes.com

On September 2nd I shared an article about co-worker sabotage titled, “Co-worker Sabotage! How One Savvy Professional Turned a Dirty Trick Around” and immediately began receiving comments back from readers on this hot topic.

One comment in particular caught my attention. It came from “gracie75” and stated, “The conclusion of this story is certainly a win-win for all. But what if the exact same thing occurred with Jane’s boss (as opposed to Tom) and the boss is taking every opportunity to publicly deface Jane because he has targeted Jane for termination?”

This is an intriguing question because dealing with a bully boss can often be much more difficult and complex than dealing with a co-worker. So I decided to scour the U.S. in search of HR experts and employment lawyers who would weigh in on this situation and provide their advice on how to deal with the boss described above, who is publically defacing one of their employees, most probably because they’ve targeted the employee for termination.

What I found in speaking with HR and legal experts is exactly what I have seen in my practice as a career coach – that this situation is, unfortunately, fairly common in business. Here is the collective advice to the employee in this situation:

Document the circumstances and details: According to David Gabor, a partner with Gabor & Gabor Law Firm in New York and a legal expert in employment law, “The first step for the employee is to detail what is being said, when it is being said and to whom it is being said.” If others have witnessed the boss’ behavior, speak with each person about what they have seen and heard and document your discussions with these people. Write down all of the information (date, time, place, location, what was said/action) and keep the notes in a safe place (such as your home or with friends or relatives), not at your workplace.

Determine the type of employment you have with the company: According to Danielle Brewer, Deputy Chair of the Labor and Employment section of the Federal Bar Association, “In most states, employees are ‘at will’ – meaning they can be fired at any time for any reason, so long as it is not an unlawful reason (based on race, religion, national origin, sex, color, age, or disability).” Because of this, the first action employment lawyer Jared A. Jacobson takes when working with clients in this situation is to determine “if there is a contract to the contrary spelling out certain terms of employment, e.g. employment agreement, collective bargaining agreement (union context) or some other form of implied contract (sometimes employee handbooks may be construed as such, depending on the state.” Keep in mind that the strategy an employment lawyer recommends will often be based on the type of employment you have with the company.

Seek to understand the reasons/grounds for the public humiliation: Explore why you believe your boss is making such statements and behaving badly. “If the employee believes that the boss is targeting them because of unlawful criteria such as their age, sex, race, national origin or disability, they may have an action for discrimination. It would then be important for the employee to adhere to the reporting requirements of the company’s Equal Employment Opportunity, discrimination/harassment policies, assuming they have such policies. For example, the company policy may require the employee to lodge any perceived claim of discrimination or harassment to the HR department if the alleged perpetrator is their immediate boss. It is important for the employee to follow this process, otherwise a court may determine that the employee did not satisfy their obligation to notify the company about the problem and could bar their claim,” states Ken Winkler, an employment lawyer in Atlanta.

Research your company’s process for handling complaints: Most every company has some sort of formal complaint mechanism and you should carefully review this policy and associated procedures. Print them out and review them so you understand the steps you will need to follow, should you choose to file a formal complaint. “Prior to utilizing this process is a good time to meet with an employment attorney,” notes Gabor.

Find out if your company has an employee assistance program: As Cathryn Dammel, an employment lawyer in Seattle with over 25 years experience, notes, “Employee assistance programs may provide free and confidential counseling to help you find ways of dealing with a bully boss and coping with the impact it’s having on you.”

Determine how you want to approach the situation: Do you want to speak first with your boss? Or, does that thought leave you feeling uncomfortable and you would rather speak with someone in the Human Resources department about your situation? If you believe the boss’ behavior is unlawful, do you want to discuss your situation with a lawyer first so they can advise you of your options? Think through how you want to approach the situation and why you want to handle it that way before taking any action.

If you choose to speak with your boss first: Jennifer Olsen, Chief Executive Officer of Resourceful HR, says she often “encourages the employee to confront the individual directly in a non-confrontational manner by stating some of their observations and perceptions. The tone should come across as non-threatening and offered in the spirit of creating a productive working relationship between the two parties.” Olsen says it is in the best interest of the employee to make sure they are not misreading the situation and “to demonstrate recognition that a string of events are occurring and offer a sincere attempt to create a more amiable situation for themselves and the work environment.” As often happens in life, there may be two sides to the situation that can be worked out through sitting down and holding an open discussion.

If you choose to speak with Human Resources: Come prepared with copies for HR of all your documentation and be prepared to walk them through the situation. “It is HR’s responsibility to understand the facts and be an impartial party to help facilitate a resolution in a timely and confidential manner that protects both the company and the employee,” states Amy Giustino, Regional Managing Director at Resources Global Professionals. “HR should initiate an investigation to document the specific exchange(s) between the employee and their boss” and as part of this investigation, you can expect HR to “have discussions with both parties to obtain specific examples, gaining clarity and context surrounding the issues,” Giustino says. Resolution would then be determined based upon the findings of the discussions and investigation. “Give your employer an opportunity to investigate your complaint and handle the situation. At that point, if nothing changes, then call an attorney that represents employees to further consider a claim against the company/employer,” adds Brewer.

If you choose to speak with an employment lawyer: Similarly, come prepared with copies for the lawyer of all your documentation and be prepared to calmly discuss the situation. Bring the documentation showing the process your company requires for submitting a formal complaint so your lawyer may review it. Winkler says if there seems to be a valid concern that the employee’s rights were violated, then he “discusses at length what my client wants to achieve and then discusses the different options they may consider to best reach that result. They may wish for counsel to intervene on their behalf at the beginning or they may choose to raise their concerns themselves.”

Determine your strategy for dealing with the situation: Your personal goals will help determine your strategy for handling the situation. Do you want to remain employed with the company? Is your goal to stop your boss’ bad behavior and create a positive working environment? Do you plan to leave the company or begin looking for a job elsewhere while pursuing specific legal alternatives? Once you are clear on your goals and you understand if your boss’ behavior is lawful or unlawful, it will be much easier to decide on your strategy for dealing with the situation. As Gabor notes, “An employee who feels that they are being treated unfairly and is still with the company is in a much better position to secure a favorable result as compared to an employee who is no longer with the company. The employee’s bargaining power comes from the fact that the company has to pay them and they are going to work every day.”

Unfortunately, it’s currently not against the law for a boss to be a jerk because general harassment by supervisors is not considered illegal in most states. “Bullying is not easily recognized by criminal and civil courts as a valid claim because it is not considered life threatening, so in order to win a suit an employee must prove that the supervisor (1) acted intentionally, (2) that their conduct was extreme, (3) that their actions caused mental distress and (4) that the emotional distress was severe,” states Doug Plazak, a partner specializing in employment law at Reid & Hellyer in California.

For now, workers who are bullied based on their race, gender, nationality, or religion may sue under applicable Federal or State civil rights laws. Many states are looking to pass similar laws as New York, with their ‘healthy workplace’ bill, which allows employees “to sue for physical, psychological and/or economic harm due to abusive behavior, based on the belief that it protects public health,” Plazak adds.

“Bullying can poison the work environment, impact productivity, reduce morale, and skyrocket medical and workers compensation claims. Good people will leave an organization that doesn’t recognize and do something about workplace bullying. Left unchecked, it can permeate a work culture and become the culture,” warns Dammel. “Bullies will bully as long as they think they can get away with it. But bullying can be stopped and the first step is to recognize what’s going on and try to take control of the situation.”

Note:Part Two of this blog series will provide advice from HR experts and employment lawyers to the misbehaving boss.

   
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