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Toxic Environment: When Workplace Behavior Is Problematic But Not Illegal

Jan 11, 2023

[This article originally appeared on Corporate Compliance Insights, January 11, 2023.]

Bullying is often a symptom of worse to come

Though its name has origins on the playground, bullying is a very real (and risky) concern in the workplace. Morale, productivity and retention all hang in the balance when workplace culture turns toxic, and the toll extends to the bottom line, too. Attorneys and workplace investigators Alezah Trigueros and Garrett Smith with Oppenheimer Investigations Group talk about what bullying looks like in the workplace and how companies can do the right thing (and minimize their liability).

A 2021 survey commissioned by the Workplace Bullying Institute found that an astonishing 30% of U.S. workers had experienced bullying on the job, while another 13% have witnessed it. It’s no wonder so many employers are adopting policies against workplace bullying.

Abusive behavior in the office takes an emotional toll on employee morale and the work environment but also a financial toll on the employer in the form of declining productivity, increased turnover and difficulty recruiting skilled candidates. While bullying itself may not be against the law, harassment or retaliation are, so failing to respond to bullying complaints can take interpersonal squabbles to the next level, creating compliance or legal problems for companies.

So, how can companies use workplace investigations to address this pernicious problem and reinforce positive company culture?

Defining bullying

The first step in addressing workplace bullying is to define the behavior, to clarify what behavior is prohibited and ensure that complaints from different employees are held to the same standard and there is no disparate treatment of such complaints.

Various definitions for bullying exist, and employers should be as specific as possible. An overly broad definition, such as one prohibiting “any inappropriate conduct,” could invite a deluge of trivial complaints, preventing issues from being addressed in a timely manner and wasting organizational resources. On the other hand, an overly narrow definition might prevent genuinely problematic behavior from being addressed.

In California, for example, no law prohibits bullying, but for the purposes of anti-bullying training, the California legislature defines “abusive conduct” (essentially bullying by another name) as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests.” The legislature went on to clarify: “Abusive conduct may include repeated infliction of verbal abuse, such as the use of remarks, insults and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

What this definition does well is encapsulate a wide range of anti-social behaviors while recognizing that not all unpleasant interactions at work constitute bullying. By including examples of what would qualify, the definition also helps set a minimum civility standard and clarifies what types of behavior employees are being encouraged to report.

Anti-bullying policies

In addition to defining the prohibited conduct, anti-bullying policies should include assurances that complaints will be investigated and violators will face consequences, as well as a prohibition on retaliation against employees who bring complaints pursuant to the anti-bullying policy or participate in workplace investigations into such complaints.

Employees often hesitate to raise concerns because they fear retaliation, which might come in the form of overt employment actions or more subtle forms of differential treatment. Compliance officers and HR professionals can mitigate instances of retaliation by informing all employees who participate in a workplace investigation — whether they are the accused or being interviewed as witnesses — of their obligation not to retaliate against any employee who has brought a complaint or participated in an investigation pursuant to the policy.

These individuals should be informed that retaliation by itself, regardless of the validity of the initial complaint, could result in discipline. Furthermore, employees might hesitate to report retaliation, so it is good practice for compliance officers and HR professionals to automatically check in with the affected employees following the conclusion of an investigation.

Compliance officers and HR professionals can also help supervisors avoid conduct that might appear retaliatory after an investigation begins. For example, if a complainant is likely to receive a negative performance review, another supervisor could conduct the review instead or the supervisor could be retrained on how to conduct objective performance evaluations.

Like bullying, retaliation should be defined in organizational policies, employees should be trained to report retaliation, claims of retaliation should be investigated and policy violations should be addressed.

Another consideration when crafting an anti-bullying policy is the policy’s applicability to remote work situations. According to the same survey referenced above, remote workers are more likely to report being bullied than their in-office counterparts (43% vs. 21%). For this reason, it is also good practice for the anti-bullying policy to clarify that it applies to conduct online between employees as well as in-person interactions.

Finally, employers should consider including a mechanism for anonymous reporting. Conducting a workplace climate survey or assessment that allows employees to speak freely and anonymously about issues affecting the work environment can help employers gather valuable information, such as how bullying occurs, how frequently it occurs and whether employees feel they can report issues to management. Another option is for employers to create an online portal so employees may submit anonymous feedback at any time.

Anonymous complainants do not always provide enough information to investigate their concerns, so companies should provide forms that ask for important information. For example, a form could have separate sections for who engaged in misconduct, details about the misconduct, where it happened, when it happened and who was affected.

Investigations matter

Once an employer receives a report of workplace bullying, an investigation should be initiated promptly to determine what occurred and whether the behavior constitutes a policy violation. Employees become disillusioned and cease to report issues when they believe it is pointless to do so, which is why it is so important that complaints are addressed promptly and seriously. In addition, conducting a timely and impartial investigation also protects the accused individual by allowing them an opportunity to be heard and offer evidence in their defense before being disciplined for engaging in abusive conduct.

Employers have an affirmative duty to investigate certain types of complaints under the law, such as harassment and discrimination, as well as an obligation to follow and enforce their own internal policies. Conducting thorough and timely investigations also potentially limits legal liability for the employer.

Certain investigations are best handled by a third-party investigator. For instance, when a high-level executive is accused of bullying, the accused’s role can weigh on the mind of a subordinate investigating the allegations. A third-party investigator has no stake in the outcome and does not report to the executive, thereby diminishing this influence. Complaints from repeat complainants, or against members of HR, are also good occasions to refer investigations to outsiders.

Bullying investigation best practices

Investigations can be disruptive, and the accused can become frustrated to learn someone complained about them. Therefore, interim measures are sometimes necessary during an investigation to ensure the well-being of the employees and the integrity of the investigation, especially if retaliation is a concern. If the accused bully is a manager, can the employee temporarily report to someone else while the investigation is ongoing? The employee should be consulted before any action is taken.

When speaking to a complainant, the investigator should be ready for a long list of incidents since some employees endure significant discomfort before ultimately filing a complaint. Helpful questions to ask can include, “What is the first incident you remember?” “What is the most recent incident?” and “What is the worst incident?” The investigator should also ask how frequently the conduct occurred. Double-check that a bullying complaint is not a harassment complaint by asking the complainant if they know why the accused treated the complainant this way.

Investigators should also prepare to ask follow-up questions to quantify subjective terms. Employees may sometimes use the term “yell” when they really mean someone was chastised or expressed frustration in a raised voice. It is important to ask for specific examples of demeaning comments, examples of body language, an estimated measurement when someone was “close” and so on. Consider asking a complainant who said the accused “yelled” to rank the accused’s voice on a numerical scale. While not an exact science, the ratings assigned by witnesses can be compared more easily.

With respect to interviewing the accused, they should be given an opportunity to explain their behavior, provide additional context and deny specific allegations. If this does not occur, this is an easy way to attack an investigation that results in discipline.

During training, employers should be sure employees are aware they should contemporaneously document concerning behavior and save any bullying messages through screenshots or otherwise. Especially in situations with no witnesses, these contemporaneous notes or electronic communications are helpful in determining whose account is more credible.

If an investigation finds that bullying occurred, coaching is one option to consider. Bullying may be driven by any number of factors, including lack of self-control, aggression being rewarded, being unaware of one’s impact, a reaction to threats towards one’s self-esteem and the inability to effectively deal with stress at work. If a bully is receptive to coaching, addressing these issues may help. A bully should be informed of the potential consequences of not changing their behavior, so that they take the coaching seriously.

Bullying prevention

At minimum, employees should be informed of the company’s anti-bullying policy, told to whom they can report incidents and informed about retaliation. Ideally, employees would also receive bystander intervention training to feel empowered to intervene when others are being mistreated.

Another way companies can reduce bullying is by changing employee incentives. For instance, using metrics that promote aggressive behavior might lead to more bullying, while adding a collaborative communication section to performance evaluations might lead to less.

Teaching managers to use active listening skills so employees feel heard, to give and receive negative feedback well and to regularly express appreciation to employees will lead to a healthier workplace and fewer complaints.

Tackling bullying complaints in a consistent manner preempts future accusations of inaction or disparate treatment. It is imperative to address problems before they escalate to the point of being unendurable. By creating a policy, setting expectations and effectively investigating issues, bullying can be reduced. Better yet, companies can build up a strong, inclusive workplace culture where everyone can thrive and contribute to overall positive outcomes.

Partner Alezah Trigueros and associate Garrett Smith are attorneys with Oppenheimer Investigations Group.