Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.

Employers Should Investigate Bullying Complaints

by Jennifer Shaw and Brooke Kozak | The Daily Recorder | June 6, 2024

Recently-enacted Senate Bill 553 (SB 553) amended the California Labor Code to require most California employers to establish and implement an effective, written workplace violence prevention plan (WVPP) containing specific information by July 1, 2024. An employer’s WVPP must include effective procedures for identifying, evaluating, and correcting workplace violence hazards and reporting and investigating workplace violence incidents.

SB 553’s definition of “workplace violence” focuses on the threat or use of physical force or statements that convey an intent to cause physical harm. Although some employers and government agencies define “workplace violence” to include a broader range of intimidating, hostile, or aggressive conduct (often referred to as “abusive conduct” or “bullying”), SB 553 does not explicitly mention abusive conduct or bullying. Therefore, SB 553 does not necessarily require employers to investigate bullying complaints. However, there are several reasons why employers should do so.

According to the U.S. Department of Homeland Security, it is difficult to predict violent behavior; however, much of the literature on workplace violence mentions “early warning signs.” In an analysis of past incidents of workplace violence, the FBI identified “intimidating, belligerent, harassing, bullying, or other inappropriate/aggressive behavior” as one such early warning sign. Because bullying can be the beginning of a path to violent action, the conduct should be investigated and addressed before it escalates.

A 2021 survey by the Workplace Bullying Institute revealed that 55% of the victims of workplace bullying leave their job to escape the bullying. Given the costs associated with recruiting and training new employees, it is in an employer’s best interest to investigate and address workplace bullying complaints to retain employees who might otherwise leave, taking their skills and institutional knowledge with them. Further, abusive conduct affects employees other than the direct victim. Such conduct is disruptive in the workplace and affects team productivity.

Moreover, employees likely expect their employer to investigate bullying complaints even if the law does not require them to do so. State law requires employers to investigate concerns about hostile conduct related to or based on certain protected characteristics. Investigating concerns about hostile conduct that are unrelated to protected characteristics sends a clear message to employees that the employer prioritizes creating a work environment where employees will feel safe, respected, valued, and supported.

In many ways, investigations into workplace bullying complaints are similar to other workplace investigations. They should be conducted in a prompt, thorough, and fair manner by a trained investigator. Employers should consider whether it is appropriate to take any interim measures prior to beginning the investigation, such as separating the parties involved. The investigator should interview witnesses who are likely to have relevant information and reach factual findings based on the evidence obtained.

However, bullying investigations are different from other workplace investigations in some significant ways. First, unlike concepts such as “discrimination” and “retaliation,” bullying does not have a commonly accepted definition. As a result, investigations of bullying complaints typically start with reviewing policies that outline the employer’s expectations of appropriate workplace conduct. Such policies are helpful in distinguishing conduct that would be considered “abusive,” which is generally unrelated to legitimate business interests, from reasonable management actions. Employers who do not have a policy addressing abusive conduct or bullying should consider implementing one while they are also in the process of meeting the SB 553 requirements.

The evidence in bullying investigations tends to be more subjective, requiring an investigator skilled in conducting interviews designed to elicit factual information. For example, employees who make bullying complaints frequently claim that the aggressor “yelled” at them. During the investigation, some witnesses might describe the subject of the investigation’s behavior as “screaming” or “shouting,” while others will state that the subject “raised their voice a little.”  An experienced investigator knows to ask additional questions to determine what actually happened.

Complainants (and sometimes witnesses) in bullying investigations may have suffered trauma from the conduct they experienced, which complicates how the person stores and retrieves memories. An investigator trained in trauma-informed investigation and interview techniques can skillfully navigate those complications to obtain quality factual information and assess the credibility of the information in an appropriate manner.

Finally, many workplace bullies do not act alone. A workplace investigation will tell the employer whether the evidence supports a finding that specific allegations of conduct occurred, but the investigation may not necessarily tell the employer if there is a more extensive problem. When the employer has reason to believe that there may be a problem with the workplace culture or work environment, the employer may benefit from having a workplace investigator conduct a workplace climate assessment. A climate assessment typically involves seeking information from a broader range of witnesses to determine the nature and extent of the problem, which then informs recommendations for addressing the issues.