WI Anti-Bullying Bill, Part II: What Could It Mean For Workforces And Employers If Enacted?

On behalf of Peterson, Berk & Cross, S.C.

Wisconsin’s anti-bullying bill, if enacted, would prohibit employers’ “abusive conduct” that cause employees “tangible harm.”

I wrote a post here that summarizes the bill.

This post (Part II) speculates what effects the bill could have, in real-life, if enacted. (If you don’t want my opinion, stop here! : )).

What would this bill mean to WI employers and employees, if enacted?

The easiest answer: it is impossible to predict all the ramifications.

The second easiest answer: this bill, on its face, is a good thing for Wisconsin employees, and a bad thing for employers. But would this pro-employee potential manifest itself as a large wave of new lawsuits against employers?

I don’t think so. There are many employers out there who do not get sued right now, despite an abundance of existing legal theories under which they could be sued. What’s their secret? That’s the subject of another post. But as a general manner, I’d say one common characteristic of employers who avoid lawsuits is that they tend to make tough employment decisions (e.g. terminating an employee) while still treating the affected employee respectfully (e.g. by meeting face to face with the employee to discuss termination, by not needlessly challenging unemployment, and/or by offering a modest severance/release that costs 1/50th of a defense attorney’s litigation fees).

I predict employers who experience mostly positive interactions with employees and no lawsuits would continue to move forward unscathed after passage of this anti-bullying law.

I anticipate that employers and their attorneys will, understandably, worry that enactment of this bill would lead to a lot of new lawsuits. And it must result in at least some new lawsuits. But “new” lawsuits would not mean more total lawsuits.

Here’s why. The enactment of this new law would incentivize many employers to take on a compliance review and take a hard look at their own managers’ and employees’ conduct. Such reviews would help employers root out abusive actions by those particular managers and employees who are prone to such conduct.

Reducing such abusive conduct would not only reduce the likelihood and liability of new anti-bullying claims, but would also reduce potential exposure to other claims, such as discrimination claims.

Many discrimination claims, both winners and losers, are borne from management treating employees in manners that are overly adversarial. (This is not to say the employees don’t act adversarial- often they do, and that is commonly part of the problem- but the employees lack leverage, and they are the ones who lose the job or have another financial loss that leaves them in a position to consider a lawsuit). Not all harsh or abusive treatment is discriminatory. However, all harsh treatment does have the affect of antagonizing the abused and/or fired employee. That employee is thus motivated to pursue a legal claim against his or her former employer.

The anti-bullying legislation would reduce adversarial conduct overall, which should reduce lawsuits overall. While there would be new lawsuits under new anti-bullying claims/theories, there should be fewer lawsuits in other arenas (such as discrimination claims) which are also primarily motivated by adversarial conduct by management that would be reduced due to the new law.

It is important to note that the new legal claims per anti-bullying laws would be court claims, which (unlike agency-based discrimination complaints) require high legal formalities and fees. There are higher barriers to enter the court system than the agency/discrimination system. The court complaints would be more imposing for an employee to file than discrimination complaints, which can easily filed by employees, including many who are not represented by an attorney.

In sum, there are many practical factors that would prevent any epidemic of lawsuits or opening-of-the-floodgates from this anti-bullying law.

While many businesses will understandably fear for the worst (an instinctive reaction based on this law or any new law providing for new employment claims), I’d hope they’d consider two bigger-picture issues: (1) employers who are not getting sued now are doing something right and will continue to do well despite addition of a few potential legal claims to the hundreds of potential claims that already exist; and (2) the new law would actually present a good business opportunity: an opportunity to examine for the presence of managerial abuse, the effects and risks it presents (e.g. lower worker morale, lower productivity, more lawsuits), and to fix those risks and problems before they morph into discrimination claims or court-based lawsuits.

I’d welcome your comments on this issue- I expect many of my business-oriented and employee-rights-oriented friends would take issue with several points above, and it would be good to hear other views.