Yes, I know about the “bigger problems” these people are referring to. I know about the global warming and the slave trade and the earthquakes and tsunamis and Osama Bin Laden. I know about cancer and birth defects and the bloody 20th century and the pollution in China and the prostitution rings in Bangkok. Continue reading
Episode 13 features an interview with our forum Den Mother and bully boss fighter, Lulu. Lulu joined our forum feeling alone and confused about how her long, stellar career could start crumbling when a much younger manager took over the department where Lulu worked. Continue reading
A Survivor’s Story: Marilyn Veincentotzs
Episode 12 features an interview with Bully Boss survivor turned author Marilyn Veincentotzs. Marilyn, who also goes by “Dr. Vee”, learned from “Work Laws Exposed” how to fight back against a bullying boss. Then she helped a good friend do the same thing. Then she took her expertise in organizational psychology and wrote a book, “How Organizations Empower Bully Bosses: A criminal in the workplace.”
Personal Help With YOUR Work Problems
In Episode 12 we also introduce a fantastic new resource for people who need help with responding to a bullying boss: The Undercover HR Person! That’s right, our forum stalwart and HR expert, “OnYourSide”, is actually named Mary, and Mary is now available to help you with workplace issues too. If you want help composing a letter to your boss, filing out a complaint form, preparing a timeline to use when meeting with HR, or completeing FMLA forms — then Mary is the perfect resource for you.
Hire Mary to Help You
Would you like help crafting a professional response to your boss, your HR Dept, or preparing a submission to the EEOC? You can hire Mary by contacting her at this address: email@example.com. Her rate is $50 per hour, and there is a 1 hr minimum. You won’t find more professional, personal help anywhere else at a rate like this. But her time is limited, so if you think you might need her help contact her soon before the limited spots are gone. firstname.lastname@example.org
Quick Tip Contact Info:You may be closer to qualifying for social security disability than you think. You owe it to yourself to find out just how close you are: www.DisabilityDigest.com
Want to know Marilyn’s complete story? Buy her book right here!
Answer: Listen to our interview with psychotherapist Dr. Ben Leichtling (pronounced Like-Ling). Dr. Leichtling wrote a book about how to take back your life from a bully, and consults with companies on how to eliminate bullying from the workplace.
Dr. Leichtling reveals in this interview his four key steps to breaking free of a bully. He also gives invaluable advice on how to deal with the mental and physical trauma that bullies inflict. This is one episode no one should miss.
Dr. Leichtling was so generous with his time that we couldn’t fit all of his helpful insights and ideas into the podcast, but it was simply too good “to leave on the cutting room floor”.
So even more of this interview is available on the Members-Only Forum, which is just $1 for the first month (and no further obligation). You can join the Member Forum here: http://www.undercoverlawyer.com/academy/member_forum.html
The Quick Tip is a site where you can rate your boss, and check to see if your potential new boss has been rated by his or her employees. The site is: http://www.ebosswatch.com/
Find even more helpful info from Dr. Leichtling at his site: http://www.bulliesbegone.com/
Let us know your thoughts on the interview, and what physical and mental effects, if any, you have felt as a result of a bully in your workplace.
P.S. The link for getting access to the full interview with Dr. Leichtling (for just $1) is here: http://undercoverlawyer.com/amember/signup.php
Don’t Have iTunes on Your Computer? Free Download from Apple w/ easy install instructions.
In the Main Segment of Episode #10 we tackle the issue of “Bully Bosses Who Forbid Bathroom Breaks.” This craziness happens much more frequently than you may think. Can you guess who the primary victims are?
#1 Spanish radio station in Miami
The radio show I mention during the show is 98.3. My thanks to Frank, the Undercover Lawyer community member from Miami who got the book and called in to 98.3 to talk about it. Thanks Frank!
In Episode #9 the Undercover Lawyer (Curt K.) reveals 10 things that bosses do to their employees that cause hostile work environment lawsuits. (Podcast Player below). Even defense lawyers get mad at bad bosses, because bad bosses cause lawsuits. This is explosive information that big business pays top dollar for; Curt himself regularly charges companies $1,000+ for “How Not to Get Sued” seminars that cover this same material! But now you get it for free, plus Curt’s explanation of how employees can use this information for their advantage.
In the Quick Tip Curt covers how the new Federal Bailout Program includes money that you get right now if you’ve lost your job. It’s the COBRA subsidy, which requires your employer to pay 65% of COBRA premiums, so that you pay only 35% of the premium to maintain health benefits after leaving a job. Before this you would had to have paid 100%. You can get more info here: http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.HTML
JOIN THE RESISTANCE!
And the most exciting news, the Members Only Private Forum of the Undercover Lawyer Academy is now available for only $1 for the first month (and $14.97 per month thereafter).ï¿½ This is a giant discount from the usual $47 per month that will go into effect in about 30 days.ï¿½ But if you sign up now, you lock in the $14.97 price for life (even after the full Employment Law Academy opens with tons of powerful new content).
You can take advantage of limited time $1 offer by clicking here: http://undercoverlawyer.com/amember/signup.php
One article was nominated for “Hub Nugget”, meaning Best New Article — and it won! Thanks to everyone who took time to vote for the article, “Hostile Work Environment — Why HR Doesn’t Care About You”.
Here’s a link to the article if you haven’t seen it, with links to the other 7 articles (or “Hubs”) after that.
You complain to your manager or to H.R., and what do they tell you? There’s no evidence that you are putting up with an illegal hostile work environment. But you are having trouble sleeping, you feel sick when you think about work, and even though you try not to you spend most of your time worrying about work, you think about little else.
How can your boss or H.R. excuse this? How can they possibly claim that nothing is going on?
Acme Markets said that Gloria Nieves was just complaining about good old fashioned teasing among co-workers. Some of it may have been insensitive, but Acme claimed that no one thing that happened to Gloria at the deli where she worked amounted to illegal harassment. But Gloria knew differently. She took Acme to court, where the court said even when single incidents don’t amount to illegal harassment, courts consider everything that happened to Gloria “as a whole” before deciding whether or not the company’s treatment of her added up to illegal harassment.
Find out whether Gloria won or lost after the court ruled that Acme should have “viewed as a whole” all the harassment that Gloria was putting up with.
The Gradual Harassment of Gloria Nieves
Gloria is Hispanic and born in Colombia. She began working part-time at Acme Deli in Middleton, Delaware in November of 2001. When Acme opened a larger store in Middleton two years later Gloria applied for a full time “senior night associate” position in the new store. Based on her seniority Gloria got the full time job working nights at the new location.
The hostility toward Gloria began as soon as she began working full time at the new store. She was told that she wasn’t allowed to speak Spanish to Spanish speaking customers. Her manager wondered out loud how Gloria could have possibly won the full time position because her “English isn’t good.” Another time a co-worker questioned whether Gloria had a “green card”. Gloria was called “stupid” when she asked questions and was treated like she had never been educated. When the topic of drugs came up, a co-worker would say “ask Gloria because she’s from Columbia.” When Gloria’s husband Emilio came to the store she had to listen to them say “de plane, de plane,” referencing a Hispanic character from the show television show “Fantasy Island.”
Gloria complained to management and to H.R. about all of this, of course. Management’s response was to simply tell Gloria “Don’t worry.” In the eyes of management none of this harassing conduct amounted to an illegal hostile work environment. It was all just good fun and joking around. Her complaints were not taken seriously at all. For instance, once when Gloria made a complaint to a supervisor, the supervisor simply waited until Gloria turned her back to walk away, and then he started laughing at her — and encouraged Gloria’s co-workers to do the same. Gloria was even called “Chihuahua” from the Taco Bell commercials.
Gloria began to cry frequently because of the workplace harassment. The Acme Deli, however, blamed her crying on “marital problems.” Gloria finally went from work to the emergency room due to chest pain, caused by the hostile workplace she had endured for so long.
Instead of taking responsibility for Gloria’s deteriorated physical condition, Acme Deli accused her faking her illness. The next week the Deli Manager suspended Gloria. Gloria filed harassment claims with the EEOC based on her national origin.
Acme Deli responded to Gloria’s EEOC complaint by arguing that none of the conduct Gloria complained of was “severe enough” to be considered unlawful.
The EEOC sent a letter to Acme stating that it’s investigation indicated that Acme had engaged in discriminatory practices and violated employment laws. After the EEOC scheduled a conciliation (settlement) meeting, Gloria filed suit in court.
How Did Gloria’s Harassment Case Against Her Employer End?
In court Acme against argued that Gloria’s suit should be dismissed because the harassment Gloria suffered was not “severe or persuasive”. But the court applied a test used by the Supreme Court, call the “totality of thecircumstances test”. Under this test:
“workplace conduct is not measured in isolation; instead, whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, …a mere offensive utterance [or] whether it unreasonably interferes with an employee’s work performance.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).
Acme claimed that Gloria had only identified isolated incidents, while Gloria argued that a set of multiple incidents makes a pattern, and an illegal pattern at that. The court reviewed all the incidents, and found that “while each act/comment, in isolation, might be perceived as insensitive, taken as a whole, a reasonable jury might conclude that the acts/comments were motivated by adiscriminatory purpose.” ( Nieves v. Acme Markets Inc., D. Del., March 7, 2008)
The Undercover Lawyer’s Take-Away Tips for Fighting Workplace Harassment:
The court in Gloria’s case rejected Acme’s argument that the harassment and discrimination was not severe enough to be illegal. Crucial pieces of evidence for Gloria included the fact that some incidents happened more than once. For instance, she was repeatedly called “Chihuahua” and her husband was taunted with “de plane, de plane,” when even he came to the store. Repetition turns insensitive actions into illegal harassment. This is a huge key to making use of this case yourself. When you allege repetition of the same harassing acts, the court should use the “totality of thecircumstances ” test and consider everything you’ve alleged “taken as a whole.” Your employer, of course, will NOT want the court to consider your allegations of hostile work environment “as a whole.”
3 Quick Take-Away Tips
1. Say Specifically “This is not just teasing, it’s harassment”
Your boss, or your boss’s boss, may want to wave off your complaint as nothing serious. If you state specifically that “this is not just teasing, it is serious harassment”, then your boss must take you seriously, or face the consequences in court of ignoring your specific complaint.
2. Keep a Timeline of the Company’s Response
Take it from me, someone whose “day job” is training managers: your manager is suppose to take immediate action to stop the harassment. Once the harassment is stopped, they should investigate your allegations. I underline should because it’s not a law, it’s just smart management. I’ve learned, however, that there are lots of dumb managers out there. So start a timeline with the dates of the incidents you told your boss about, the date you reported the harassment, the date the boss takes action, the date(s) of theinvestigation, and the conclusion (if any). And by the way, your boss saying “I want everyone to act like adults” is not enough.3. Ask For a Copy of Your Employer’s Anti-Harassment Policy
One well know H.R. blogger advises employers to have an anti-harassment policy that is more strict that the law requires. In her view, if an employer has to argue that what an employee suffered through was not “severe enough” or “pervasive enough” to equal illegal workplace harassment, then that employer is going to lose. In court. So when you report harassment, ask for the company’s anti-harassment policy, both so you can evaluate how strict it is, and more importantly, to send a message to your boss that YOU are going to hold HIM/HER accountable to living up to that policy.
Have you had a boss claim that what felt like harassment to you was “merely” teasing? If you have, or are currently dealing with this you can get even more tools to fight back against workplace harassment and win with the Undercover Lawyer’s electronic book “Work Laws Exposed”.
Have you felt emotional distress at work because of the abusive way your boss treats you? Many of the people who contact me for help in dealing with a bully boss feel this way, and they want to sue their boss in court for all the workplace abuse he or she has inflicted.
When someone like this tells me they want to sue, the first thing they say is that their boss caused “a hostile work environment.” (If you still think you can sue for a hostile work environment, you need to sign up for my 7 Free Work Law Secrets Email Course). The second thing people want to sue for is “intentional infliction of emotional distress.” This also rarely works, and I don’t advise pursuing it, but…
…but a women named Gina Strong in Washington State recently has some success suing her boss for negligent infliction of emotional distress. Because she also sued her boss for intentional infliction of emotional distress (and lost on that one), her story is a great example of what legal claims can work if you want to sue your boss and which legal claims don’t (usually) work. Having a boss who did more than just call her names is where Gina’s story starts.
Gina Strong’s Emotional Distress
Gina Strong worked in a school district print shop, where Jim Terrell supervised her. Terrell screamed at Gina every day. Terrell criticized her work in a sarcastic unprofessional manner. Terrell told blond jokes in Gina’s presence, and yes Gina was blond. Terrell even ridiculed Gina’s personal life: he made fun of her new house; he mocked her husband’s job; and he told her that her son would soon realize that she was a “bum” mother.
How did Gina respond to Terrell’s workplace harassment? She responded the in the same way as many of the people who are reading this article have have responded to their own abusive work environments: she vomited, she experienced anxiety attacks, she suffer from depression, and she even began to have a heart arrhythmia.
Gina went to the school district office and filed a harassment complaint against Terrell. A district office employee, Nichollet Koch “investigated” the allegations and found (like every other in-house investigation) that nothing Terrell did to Gina “rose to the level of illegal harassment.” In other words, the organization knew that Terrell was an abusive asshole, but it wasn’t illegal abuse. So, the school district didn’t punish Terrell. It “recommended” that Terrell take some classes to improve his “management style.” Gina was not satisfied.
After the district closed it’s file on the matter, something made the investigator, Koch, look further into Terrell’s behavior. Soon after the district office recommended that Terrell be terminated. Terrell resigned before that happened.
Three months after Terrell had resigned Gina filed a lawsuit against the district officer and Terrell as individuals (not as agents of the school district). Both defendants filed motions for summary judgment – which asks the judge to throw the case out before trial. The court did throw out the case, but Gina was not satisfied. She filed an appeal.
The Appeals Court considered whether Gina could sue her boss for Constitutional violations (the court said no), whether she could sue her boss for “intentional infliction of emotional distress” (the court said no again) and whether she could sue her boss for “negligent infliction of emotional distress” (the court said yes).
The Appeals Court noted that Gina did not allege that Terrell sexually harassed her, or that his conduct created a “hostile work environment based on sex”. Instead the court observed that “the majority of her claims related to Terrell’s method and style of supervision.”
Court Acts on Gina’s “Intentional Infliction of Emotional Distress Claim”
The legal claim of “intentional infliction of emotional distress” is a “tort” (which is not a dessert in this context). A “tort” is a civil wrong – as opposed to a criminal wrong. Torts come from the history of judges writing written decisions about why the judge decided in favor of one side and against the other side.
In the state of Washington, for you to prevail against your boss on the tort claim of “intentional infliction of emotional distress” (IIED for short) you must prove that:
Your boss engaged in extreme and outrageous conduct;
Your boss intentionally or recklessly inflicted emotional distress on you; and
Your boss’s outrageous conduct actually caused you to feel severe emotional distress.
The Washington State Supreme Court adopted these elements from a publication called the Restatement (Second) of Torts sec. 46 (1965). I’ll explain the Restatement more fully in another article, but for our immediate purposes all you need to know is that most states follow the Restatement; so most States, including your state, use the same three elements above for their tort of IIED.
Most people read the elements of IIED and think “Perfect! This is how I’m going to sue my boss!!” The elements seem to fit what their boss does to them. It just sounds right. Their boss purposefully puts them through hell, and they can’t sleep, feel depressed, suffer from anxiety, and begin getting ulcers.
The problem is, most of what your boss does to put you “through hell” does not meet the very high threshold of what it takes to qualify as “outrageous.” In Gina’s appeal the court decided that the first element of IIED, outrageous behavior, must be “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
IIED, said the court “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” The court claimed to be sympathetic to Gina’s plight, but said that what her boss did was more in the vein of “insults” and “indignities” and did not cross the boundary into something “beyond all possible bounds of decency” and “atrocious”.
Victory! The Court Allows Gina’s Claim of Negligent Infliction of Emotional Distress
After dismissing her IIED claim, the court turned to Gina’s legal claim against Terrell for the tort of Negligent Infliction of Emotional Distress (NIED). This time, the Appeals Court decided that what Terrell did could possibly rise to the level of NIED, and therefore allowed Gina to take Terrell to trial on the NIED claim.
NIED is more often recognized in the workplace setting when “it does not result from an employer’s disciplinary acts or its response to a workplace personality dispute.” The elements of this claim are:
Boss had a duty to refrain from conduct that would foreseeably harm you;
Boss breached the duty of #1, and did engage in conduct that would cause you forseeable harm;
The boss’s conduct in #2 directly caused you harm
You actually were harmed (you are not exceptionally tough, and didn’t manage to shrug it off);
You have objective medical evidence that you experienced emotional distress (such as your doctor had to prescribe anti-depressants, sleeping pills, or high blood pressure medication).
In Gina’s case against Terrell, she claimed that he did the following things (#2) and had a duty not to (#1) which directly caused (#3) her actual harm (#4), and she also had seen a doctor who could verify her “emotional distress” harm. So, here are the acts that made up element #2, what the boss Terrell should NOT have done:
He continuously made demeaning comments and jokes about her blond hair until she dyed it brown
He mocked the house she purchased
He mocked her husband’s job
He called her a “bum mother”
He spit in her face as he screamed at her for using the wrong bulletin board for union information
He stood so close to her while screaming in her face that she feared he would strike her and felt his spit hitting her face
He disconnected the telephone during the night shift so she could not call out of the print shop
Terrell tried to argue that these actions could not possibly amount to NIED, because they were all “workplace personality disputes” or were related to discipline in the workplace. The court didn’t buy that argument for a second.
The court pointed out that spitting in someone’s face can equal fourth degree assault. Making someone believe you are going to hit them can equal battery. Neither of these two things are a “mere workplace personality dispute.”
The court also pointed out that there was no way the boss, Terrell, could convince them that his comments were all work related. Terrell’s mocking of Gina’s personal life and taunts about her hair color were “rude, boorish, and mean-spirited and were not done in furtherance of legitimate work-related topics… Terrell’s conduct regarding [Gina's] personal life was not a workplace dispute, although it occurred in the workplace.”
The court then reversed the lower court, and ordered that Gina be allowed to go to trial in front of a jury on the NIED claim.
Undercover Lawyer’s Take Away Tips:
Don’t believe that you can sue a jackass boss for acting like a jackass by using “intentional infliction of emotional distress;” your best bet is, and always will be, to get yourself in a protected class.
You might be able to sue your boss for negligent infliction of emotional distress, but only if your state recognizes this tort and your boss is attacking you as a person and not as an employee.
Keep a journal, take notes, write everything down. It bears repeating that you need to keep dated quotes of what your boss says and does. To pursue an negligent infliction claim you will need to show that he or she lashed out at you in ways that are completely unrelated to workplace issues.
If you want to download the full case to read for yourself, or to highlight the NIED portion and hand to your HR Department when you turn in your own boss, you can view and print it here:
Does your boss attack you as a person, and not your work as an employee? Tell us about it in the comments section below.
If you’ve escaped working for a bully boss, but are afraid of what the bully will say to your prospective employers during reference checks, then this article is for you. I’ve been getting this question a lot lately, most recently from a reader named Allen, whose email to me is posted below with my response following:
Hi there, I was searching through some law websites when all of a sudden I came across your website. I had a question about job applications: is it unlawful to ask why you left your last job? The reason I asked is because I was fired from my last job for some flim flam reason, and it would be a shame if I didn’t get the job that I’m applying for due to telling the truth, and then the truth turns right around and kicks me in the butt.
Also, is it illegal for a former employer to tell anyone that they fired you?
Here’s My Response To Allen’s Job Reference Question
Thanks for writing. The answers to your questions about reference checking are “No” and “It can be”. Let me explain one at a time.
2. It can be illegal for your former employer to give a bad reference about you if he or she knows the negative reference is not true. So, whenever giving a bad reference, the company giving it must be truthful and completely accurate. If the reference is not truthful and accurate, and it causes you to not get a job, then you can sue your former employer for defamation. Here are the elements of defamation:
- Publication to a third party (the prospective employer);
- Of a false statement (the description of you as anything other than a conscientious, hardworking employee)
- That harms your reputation (you didn’t get the job)
- Damages (the money you are not making because you didn’t get the job).
See how cleanly the elements of defamation match up with the act of giving a former employee a bad reference? Your ex-employer could only argue over the second element of defamation. Elements 1, 3, and 4 are all indisputably present.
This is why so many companies only release ex-employees’ dates of hire, dates of separation, beginning wages, ending wages, and job titles. Those things are objective. The company can prove each one was accurate. But if the ex-employer starts to talking to a prospective employer about your “attitude,” or if you were “a team player” or other vague statements, then your former bosses are getting into highly subjective territory that you can dispute.
What I suggest is that you call the old company and ask what information they give out when someone calls to check a reference. If they give out more than just your dates, position and wage, then tell them you object to releasing any more than those few objective facts. Be sure to follow up in writing with your ex-employer by sending the company an email or letter (to your immediate boss and to whomever is responsible for HR). Here’s another of my famous letter templates for you to use:
“To confirm our phone conversation of earlier today, you stated that Company does release subjective information to potential employers who call to check the references of Company’s former employees.
“I continue to object to Company releasing ANY information about my tenure with Company other than my date of hire, date of separation, beginning wage, ending wage, and job title. If Company does not limit itself to these objective pieces of information, but knowingly gives out false information about my employment which causes me to not be hired, be assured that I will take legal action.
“You know that I dispute the reason given for my termination. Although I still believe that Company knows this reason was not true, I have tried to move on with my life and make a clean break. If Company decides that it must spread untrue information about me to my potential employers, I will have no choice but to reverse my decision to make a clean break and file suit against Company in court for defamation.
“I sincerely hope that Company will agree to make a clean break of our relationship and that further communication between our attorneys will not be necessary.
If your former employer has any sense at all, it will realize that it is much, much cheaper for it to only release your dates, wages and title; in fact, your former employer gains nothing by stabbing you in the back with a bad reference. Most see that giving out references offer nothing to gain and plenty to lose. With a letter like the one above, you can demonstrate to your former employer that refraining from saying anything negative about you is “a no-brainer.”
Have YOU ever faced the prospect of a former employer giving you a bad reference you didn’t deserve?