Connecticut Law Keeps Workplace Bullies In Check

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The schoolyard "bully" of childhood has evolved. Bullying no longer stops in grade school or even middle school. It has invaded college campuses, can be found on social media, and has even found his way into professional sports. However, nowhere have the effects of bullying been more damaging or raised more controversy than in the workplace. The problem has even spawned its own Workplace Bullying Institute, an organization that tries to define what bullying is and to provide employers and employees with advice on how to address it in the workplace context.

According to the institute, workplace bullying is the "repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators by conduct that is: threatening, humiliating, or intimidating; or work interference-sabotage- which prevents work from getting done; or verbal abuse." The prevalence of bullying in the workplace seems to be staggering. While there may be some disagreement about what behavior really constitutes "bullying. It is clear that severe mistreatment in the workplace can lead to serious emotional distress, psychological harm, and in the severest cases, may even result in a victim's suicide.

Connecticut Healthy Workplace Advocates have worked to have a law enacted that would afford a private right of action for abusive conduct-" bullying"in the workplace. Several bills have been proposed in the Connecticut General Assembly, but none has been enacted. The fact is, however, that in Conn. Gen. Stat. 31-49, Connecticut already has a statute on the books which can and should be looked to as affording rights of action to severely mistreated, "bullied" employees.

The statute instructs that: "It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master."

Passed in 1902, Conn. Gen. Stat. §31-49 was a predecessor to the state's workers' compensation statute. Insofar as the compensation law addresses the safe workplace issue, it has superseded §31-49. However, where the workers' compensation statute leaves gaps, 31-49 should remain the law of the land. See Perille v. Raybestos-Manhattan-Europe, 196 Conn. 529 (1985).

Section 31-49 requires that all employers provide employees with three things: (1) a "reasonably safe workplace"; (2) "fit and competent" coworkers; and (3) the exercise of "reasonable care" in appointing fit and competent supervisors over them. The statutory language was taken from an 1891 Connecticut Supreme Court statement of the employer's common law duty to its employee in McElligott v. Randolph, 61 Conn. 157 (1891). The court's language in McElligott was copied almost to the letter when 31-49 was passed a decade later.

Spark of Life

Before the 1913 enactment of Connecticut's Workers' Compensation Act, Conn. Gen. Stat. 31-49 was the basis for actions filed to establish employer liability and recover damages for employee on-the-job injuries. After 1913, §31-49 faded into obscurity. It was given a spark of life by the 1985 Supreme Court's ruling in Perille, which held that the statute could be relied on to fill in gaps that existed in Worker's Compensation Act workplace injury coverage.

Further life was breathed back into §31-49 by two events that followed the Perille decision. First, came the 1993 Workers' Compensation Act revision that removed coverage for emotional distress claims not arising out of physical injury; a change that opened a gap in the compensation act's remedial structure. Second, was the Supreme Court's decision in Parsons v. United Technologies, Sikorsky Aircraft, 243 Conn. 66 (1997), which established that §31-49 could form the basis of a public policy wrongful discharge claim when an employee was subjected to a physically unsafe workplace.

The post- Parson employee's burden is not a light one. The court requires that the employee contending that a discharge violates §31-49's safe workplace public policy prove that the condition or situation in which the employee was directed to work posed an "objectively substantial risk of death, disease or serious physical harm," and that his firing resulted from his refusal to work under the dangerous conditions. Parsons considered only the employer's safe workplace obligation as it touches upon the issue of possible physical injury. It did not speak to the questions of competent co-employees, fit supervisors or the issue of emotional injury arising without physical harm.

After Perille, Parsons, and the 1993 Workers' Compensation Act amendments, we have a revitalized 31-49 positioned in the law to provide employees with claims against their employers for emotional distress caused by workplace bullies. The employer who allows such workplace mistreatment arguably violates the "safe workplace" duty established by §31-49, and the requirements that it provide competent coworkers and supervisors. Parsons gives a terminated employee a cause of action for the damages arising out a termination caused by bullying as a matter of public policy and the statute itself affords direct relief against the employer to the worker still employed who suffers only emotional harm from a bully's abuse.

Emotional Injury

Parsons provides guidance on the kind and level of abuse that might give rise to a workplace bullying claim. It has been argued that the emotional injury imposed by the workplace bully simply does not create an unsafe workplace. That position ignores more sophisticated visions of the degree of harm that can be called emotional and disregards the potential that bullying can lead to workplace violence and employee suicide.

Just as the court said in Parsons when considering that plaintiff 's workplace safety issue, the complainant in any §31-49 case would likely be required to show that the abuse could lead to an objectively substantial risk of severe emotional injury for the workplace to be labeled unsafe, or the coworker or supervisor who allows the bullying to be categorized as incompetent or unfit. A finding of an unsafe workplace or incompetent or unfit coworkers or supervisors should, by itself, determine the question of whether the employer acted reasonably in governing the workplace and appointing the coworker or supervisor.

It is also likely that the courts would impose an obligation on the plaintiff to show that a complaint about the coworker bullying behavior was lodged with the employer's responsible representative, and that the employer took no effective responsive action. Such a showing should not be required if the bullying was carried on by a supervisory employee who acts as an employer's agent in employee interactions.

One thing is clear: with workplace bullying on the rise, Connecticut law needs to recognize and afford victims an adequate remedy at law. Just as the nature of bullying has evolved, so must the way in which we address the problem. The intent of Conn. Gen. Stat. §31-49 and its mandate that employers provide employees with a reasonably safe place to work and fit and competent coworkers and supervisors provides victims a statutory remedy for their emotional injuries or termination from employment caused by workplace bullying, without the need for additional legislation.

If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.

Source: Robert B. Mitchell, Century-Old Statute Protects Workers Until Legislature Addresses Issue, 20 CONN LAW TRIB 51 at S2 (Dec. 22, 2014)