Today we have a special treat. My associate, who now chooses to be anonymous, has written a guest post. This is his very first blog post. I think he did a pretty nice job. I hope he'll share some more insights with us here in the upcoming months. Here's his post, about a creative solution to the very common problem of workplace bullying:
Are Workplace Bullies Violating Criminal Stalking Laws?
by: Associate Attorney who now chooses to be anonymous
Does this sound familiar?: “My co-worker follows me around all day, every day, tormenting me, and waiting for me to make a mistake so she can report me to a supervisor?” Or, how about this?: “My boss berates me all day, every day. He just tells me I am worthless. I am a disgrace to the company. I should never have been hired. If it were up to him, he would prefer to see me on the streets.” Maybe you have stack of emails and attachments from a co-worker. The photos are of grotesque images that the co-worker sends to you on a daily basis because she knows you have a weak stomach and cannot handle the images.
This kind of mistreatment frequently happens at work with supervisors or coworkers. If I heard this story, I might say to you, “Yeah, you are right! That guy is a jerk! That guy is obnoxious! She is annoying! She is a BULLY!!” However, I would also tell you that no state has passed any anti-bullying laws, so you may end up with no remedy. Unless this bullying also amounts to sexual harassment, racial harassment, or other discriminatory harassment, there is likely no civil remedy for an employee facing workplace bullying. You may file a written complaint with H.R. or inform your supervisor, but you are not protected against retaliation if you do this. Chances are, this course of action will lead nowhere. You may have two possible choices: (1) suck it up or (2) start looking for a new job.
However, there may be recourse for a victim of workplace bullying, as long as the bullies’ behavior is criminally annoying, obnoxious, or rude. It just may not be recourse that a civil attorney can help out with. Why? Because it involves filing a criminal complaint, not a lawsuit.
So, if a co-worker or boss’s bullying rises to the level of criminality, you may be able to seek an injunction against their behavior by using your state’s criminal stalking statute. And, I am not talking about your friend Tony who is “criminally” annoying the way he always one-ups everyone. (“Hey Tony, I wrote my first blog post today!” “That’s nice Ryan! I have 50,000 followers on my blog site and am working on my third novel, entitled, ‘I am Just a Little More Awesome than You Are.’”). I am talking about those people who fit into the descriptions above, which behavior falls squarely within your state’s criminal stalking statute.
The Florida stalking statute provides, “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.” Sound familiar? If so, your workplace bully may be a stalker.
A violation of this statute may result in a definite term of imprisonment not exceeding 1 year. To harass someone under this statute requires “a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” And yes, your boss harassing you over your work is probably a “legitimate purpose,” no matter how petty you think she’s being.
In Florida, this statute has been successfully used by employers against disgruntled employees after disputes concerning unpaid wages escalated. It seems logical that this statute could be used by employees for protection against workplace bullies, including co-workers and supervisors. I was not able to find any case law where an employee did use the law to handle a workplace bully, but may be a last resort possibility for an employee whose daily existence at work has become dreadful. If your employer retaliates against youfor seeking a stalking injunction or filing criminal charges against a co-worker, then you could have a potential whistleblower retaliation claim in a civil lawsuit. If that happens, it may be time to talk to an employment lawyer in your state.
The Florida statute is very broad and could potentially provide a Florida bullying victims with some recourse against workplace bullies, allowing them to keep their jobs without having to suck it up and deal with bullies on a daily basis. Indeed, stalking, even aggravated stalking, can encompass acts that, in and of themselves, might fall short of prosecutable conduct. This means, “prohibited behavior under the statute encompasses both non-criminal and criminal behavior.” If you’re a bullying victim, it may be worth checking out your state stalking law.
Stalking is very real and very scary, which is why every state has stalking laws on the books. Although the first anti-stalking law was not enacted until 1990, the reality of stalking in the workplace is not a new concept. Almost a decade ago, attorney Janet Goldberg wrote, “An employee who fears a potential attack by a co-worker can use these laws to restrain that individual. For example, “stalking” laws in some states make it a criminal offense to engage in conduct that threatens another person’s safety.” Ms. Goldberg’s article was addressing workplace violence. However, the stalking laws discussed above are not limited to situations where a threat of violence is involved. In Florida, you do not need to fear a potential attack by the bully to be the victim of stalking. If there is such a credible threat, the bully could be charged with aggravated stalking, a felony. In fact, even aggravated stalking may be based on threats that fall short of an assault.
Some of the most unjust and frustrating circumstances are faced by employees who are simply trying to go to work without being harassed everyday by workplace bullies. I would love to hear from any lawyers or employees who have either used stalking laws in the employment context or who have defended against such a suit or criminal case. I would also like to hear about other strategies used by attorneys to assist clients in dealing with workplace bullies. The sad fact is, we need clear anti-bullying laws if we want to eradicate the workplace bully.
Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.