You know the behaviors all too well. Bosses that think the louder they yell the more likely you are to do what they demand. The bosses that are sure they are right in each and every situation and expect to never be questioned. Peers who feel the need to “explain how it’s done around here” so you don’t disrupt their status quo. The senior employee who degrades the junior employees in meetings by telling them they are stupid or idiots because they think differently from him.
You know these behaviors have severe consequences to the morale of your business. Nobody likes to come to work and get humiliated by a blowhard. These employees who exhibit the boorish behavior cost your company productivity, turnover, brain drain, and customers. But are there legal consequences to these individual’s actions?
Consider the guidance documents for the U.S. Occupational Safety and Health Administration (OSHA) that define workplace violence as including verbal abuse. What do you do if one of the recipients of this type of behavior comes to you and claims that they have a right under the OSHA’s general duty clause to demand the offender be fired or disciplined because the individual” presents a hazard of workplace violence”?
Before you jump to any conclusions or actions, first consider what could happen if you investigate the individual under your workplace violence policy. How will you permanently damage your relationship with the offender, his boss, and his peers if you investigate an issue that clearly did not did not imply any immediate threat of physical violence? Will you escalate the situation to make it even worse than it already is? Or is there another way to get this ogre to behave in a more appropriate manner?
When you first start to research what to do, you come across an OSHA booklet entitled Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments and find that there is some merit to the complaint. After all, it does say a covered incident of workplace violence can include “using abusive or obscene language … or … conduct which … seriously annoys another person”. So you dig deeper.
You then come across the National Institute for Occupational Safety and Health who define workplace violence to include “verbal abuse”, “intentionally causing annoyance or making unreasonable noise … or to misbehave or disturb persons which serves no legitimate purpose”. As you read on you find a section that further lists workplace violence as “abusive language or conduct which seriously annoys another person”.
Fortunately, although OSHA has made some statements that seem to back up your complainant, it does go on to clarify the limits of the General Duty Clause. The general duty clause applies only to conditions causing or likely to cause death or serious physical harm. It does not apply to conditions related to psychic or emotional harm or to emotional distress or anxiety.
As you breathe a sigh of relief, you realize there is maze of contradictory information out there which your disgruntled and disengaged employees are taking the time to uncover. You still need to deal with the environment your blowhard employee is creating. Ignoring the situation is not an option. But you have the ability to conduct an investigation into poor behavior as an employee relations issue, not workplace violence, and do some real reeducation with your offender about the expectations of the organization regarding interactions with others.
But what do you do if your claimant contacts OSHA and you get a call from an OSHA inspector? First, don’t panic! Second, call contact counsel who is experienced in OSHA cases. Third, Emphasize that your company has a workplace violence policy which is an important component of keeping all of your employees safe. Emphasize that the Company is handling the matter, but stress that because the behavior was not likely to cause death or serious physical harm, you are investigating the matter under your Company’s employee relations policies.
The last thing you want to do is to open the door to trivial complaints by individuals looking to increase tension in labor relations; sully the reputation of a supervisor; unnecessarily embarrass a manager due to a vendetta held by an employee; or set a precedent where any unwelcome conversation can be construed as a threatening behavior. Workplace violence is a real issue, and as such, it needs to be treated with respect, objectivity and with a sense of urgency. Including boorish behavior into workplace violence policies will lead to a desensitization of what workplace violence really entails.