Defining Workplace Violence and Harassment – What Bill 168 Says

Ontario’s Bill 168 is an amendment to the Occupational Health and Safety Act and has been in effect since 2010.  Its aim is to establish minimum standards and to set out the rights and responsibilities of all those who have a role dealing with violence and harassment in the workplace. Although you may feel that you “know it when you see it” when it comes to violence and harassment in the workplace, it is a good idea to familiarize yourself with the legal understandings of these terms.

“Workplace violence” means the use, attempt to use, or the threat to use physical force that causes or could cause injury, in a workplace.  The “threat” of violence includes threatening notes, emails, or telephone calls.  (The legislation is silent as to Facebook postings and threats via Twitter.)

It is important to note that the relevant factor here is that the violence occurs in a workplace.  Who commits or threatens the violence is not relevant.  A violent act or threat may originate with another worker, a supervisor, a customer or client, an acquaintance of someone in the workplace, or a random stranger. When employers assess the risk of workplace violence (as they are obliged to do), they must consider all of these possible sources of violence.  It is worth noting that domestic violence that takes place in a workplace is covered under the Act, and that employers have a duty to protect workers from domestic violence in the workplace.

Although workplace violence can have deadly consequences, thankfully it is relatively rare.  Workplace harassment doesn’t often make the news, but I suspect that it contributes more often than we realize to low morale and low productivity.  (See my previous posts on Workplace Strife and What makes for a “good job”?)  “Harassment” is defined as a course of “vexatious” (bothersome) comment or conduct that is unwelcome, or ought reasonably to be known to be unwelcome.  Examples include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, and making offensive or intimidating phone calls.  A “course” of comment or conduct implies that the behaviour in question has happened more than once.

Does this mean that a supervisor can no longer criticize a worker’s job performance?  No.  Reasonable actions on the part of a supervisor that are part of his or her normal work are excluded.  These include changes in work assignments, scheduling, job assessment and evaluation, workplace inspections, implementation of dress codes and disciplinary action.  For example, it is perfectly acceptable for Mary to tell her employee, Mike, that the company’s dress code requires him to cover up his new tattoos while on the job.  It would not be acceptable for Mary to belittle or ridicule Mike for getting tattooed in the first place.  Nor would it be acceptable for Mary to allow or encourage others in the workplace to hassle Mike about the tattoos.

I am not a lawyer and none of this is intended as legal advice!  The Ontario Ministry of Labour has some excellent resources for Bill 168 on their website.

In my next post, I’ll talk about employers’ responsibilities under Bill 168.

What makes for a “good job”?

My daughter is an avid player of the iPhone/iPad game “Tiny Tower.”  The object of the game is to make your tower as tall as possible, all the while managing the businesses and apartments within and seeing to the happiness of your residents or “bitizens.”  I think it says something about our recessionary world that the way to make your bitizens happy (complete with smiley faces) is to put them into their “dream job” – whether it is to work in a bakery, a dental office, or a tattoo parlour.  Consider that for a moment – the way to happiness isn’t through leisure, family and loving relationships, knowledge or spiritual enlightenment, but through having the right job.  (Another perspective on “Tiny Tower” appeared here, on the “PopMatters” website.)

Most of us spend a lot of time at work, and there is no doubt what happens at work contributes to our sense of well-being.  And most of us recognize that we’re better suited to (and would be happier doing) certain jobs rather than others.  But a recent study suggests that what makes us happy at work is not always what we think it is.  Thomas Cornelissen examined the data collected by the German Socio-Economic Panel, a household-based survey of the German population which started in 1984 and has now surveyed over 20,000 adults.  He found that the three most important factors in job satisfaction were (in this order)

• Relations with colleagues and supervisors
• Task diversity
• Job security

Cornelissen’s article, “The interaction of job satisfaction, job search, and job changes. An empirical investigation with German panel data” appeared in volume 10, no. 3 of the Journal of Happiness Studies. (He also found that lack of job satisfaction leads to the probability of job search, which in turn leads to increased likelihood of job change, especially when labour market conditions are favourable.  But that is what you would expect, isn’t it?)

The lessons for managers seem clear, if not always easy or obvious to put into practice.  Employees will be happier and will be more likely to stay on the job if their relations with one another and with management are good.  And how to help develop and maintain those good relations?  Make sure that your employees can talk to you.  Understand the cost of workplace strife.  And when conflicts arise, consider workplace mediation .

Anger on the Job

I recently read a terrific article on anger in the workplace:  Deanna Geddes and Lisa T. Stickney, “The trouble with sanctions: Organizational responses to deviant anger displays at work,” published earlier this year in Human Relations (vol. 64 no. 2).  The authors surveyed employees in the U.S. about expressions of “deviant” anger they had witnessed in the workplace, the responses by management and co-workers, and about overall outcomes.  Their results may surprise you.

I often work with people who have been on the receiving end of or witnessed an angry outburst.  Someone (an employee, co-worker, neighbour, or partner) simply “lost it.”  The specifics may include yelling, screamed obscenities, slamming doors, threats of violence, hurtful email messages WRITTEN IN ALL CAPS, and the uncomfortable silence that follows, lasting from a few hours to several days, when no one is sure what to say or how to respond, and everyone fears what might happen next.

While it is uncomfortable to be on the receiving end of an angry outburst, being the one who “loses it” in front of others is hardly much better.  I wrote in an previous post that our sense of anger is often tied to our perception of injustice.  Although there are people who become angry at everything (or at nothing), expressions of anger sometimes have a legitimate cause.  Anger in the workplace can signal systematic and significant problems.

Geddes and Stickney found three different kinds of responses to anger in the workplace:

• Sanctions:  These may be formal (warnings, suspensions, dismissal) or informal (coworkers distance themselves from the angry person or respond with anger in kind).
• Support:  Management and/or co-workers try to understand what caused the outburst.  They may speak with the offender about his or her behaviour in a supportive manner.
• Avoidance:  Everyone pretends that the outburst never happened.

The authors found that when management and co-workers responded to anger in a supportive, problem-solving manner, the results could be positive.  As the authors write, “even intense emotional outbursts can provide information, and if responded to more compassionately, can lead to favorable change.”  They found that even a single supportive act by a manager or co-worker could significantly improve a problematic situation.

Surprisingly, acts of deviant anger, even physical acts of anger, were found sometimes to have significantly positive effects in the workplace, even though they were often met with formal sanctions.  Physical anger displays and employee dismissal were highly correlated, but there was no association between dismissals and positive change in the workplace.  So whatever made the situation better, it was not simply because one angry person (a “bad apple”) was removed.  The authors think it more likely that a physical act of anger, because it is so highly visible and difficult to ignore, prompts an immediate response by management, including attempts to address the cause of the emotional outburst.

The least effective response to anger?  Pretending that it didn’t happen.  The evidence in this study indicates that ignoring emotional episodes is not good practice.  Not only is the opportunity for positive change lost, but the lack of any response is frequently troubling to other employees.

The lesson for managers:  When employees “lose it” on the job, there must be a response.  Emotional displays that reflect an aggressive or harmful intent must be sanctioned, and hostile or violent employees must be removed.  Less intense and troubling outbursts can lead to positive change if they are used to identify those workplace conditions that require attention.  Responding to anger and other emotional outbursts can be difficult, but the viability of your business may depend on it.

I’m in Mediation. Why do I need a Lawyer?

The Ontario Association of Family Mediators “Code of Professional Conduct” states that mediators must inform clients of the advisability of obtaining independent legal advice, both from the outset of the mediation and prior to signing any mediated agreement. Indeed, many mediators will not accept as clients people who refuse to obtain independent legal advice. Sometimes people who are working with a mediator are dismayed to find this out. “We want to stay out of court!” they protest. “Why do we need lawyers?”

The short answer: Your goal is not just an agreement. Your goal is a durable agreement, one that neither party will be motivated to challenge in the future. A durable agreement will save you time and money in the long run. It will provide stability for everyone involved and allow both parties to get on with their lives.

There are two main reasons why consulting a lawyer is important for crafting a durable agreement. First, each party needs a lawyer to certify their financial disclosure. If it turns out that one of the parties has (whether by mistake or on purpose) misrepresented his or her financial situation, any agreement reached on the basis of the misrepresentation may not be durable. The other party would have a reason to challenge the agreement in court.

Second, both parties need independent legal advice. This means that each party needs to know their rights under the law, and to what extent (if any) the mediated agreement deviates from these legal rights. For example, if one of the parties agrees to forgo spousal support, she needs to know what her legal entitlements are so that she can make an informed decision. If she makes a decision without having all of the relevant information, then any agreement she signs may not be durable. She would have a reason to challenge the agreement in court. Now, some people, for all kinds of reason, decide to accept an agreement that does not reflect their legal entitlements. Some agree to settlements that provide less than their legal entitlement. Some agree to settlements that are more generous to ex-partners than is strictly legally required. Many different kinds of agreements may be fine, as long as everyone is fully informed about their rights and obligations under the law.

Independent legal advice means that each party needs a separate lawyer. By definition, one lawyer cannot offer independent advice to two parties in the same dispute. It is a good idea to consult with a lawyer early on in the mediation process, and be informed about your rights and obligations as you proceed. This is likely to save you time and money in the long run. If you’ve developed an agreement on the basis of misinformation or misunderstanding, a lawyer may advise you to start over.

Finally, be sure to engage a lawyer who has expertise in family law. Don’t hire your cousin the corporate lawyer or the really likeable real estate lawyer who helped you buy your house. Family law is complicated and you want to make sure that whomever you work with is well-informed. If you’re determined to stay out of court, make sure your lawyer knows this and respects your wishes. (And to find a lawyer who is also determined to stay out of court, consider working with a collaborative lawyer.)

"Droit de Suite" in the UK: Economic Impact So Far

I’ve written here before about “Droit de Suite” or artist’s resale rights. These are fees paid to artists when their work is resold. And I’ve written about some of the bad arguments often made against the adoption of droit de suite. In 2006 the UK adopted artists’ resale rights for living artists, and in 2012 they plan to extend the legislation to benefit the heirs of artists who have died within the past seventy years. At the time that droit de suite was implemented in the UK, many artworld figures made dire predictions that prices for the work of living artists would fall, and that those with artworks to re-sell would leave the UK for markets (such as China, Switzerland, and the U.S.) where artists’ resale rights did not apply. Either of these consequences would have been bad news for the UK art market, and for the many artists, designers, dealers, and others, whose livelihood is linked to it.

Have any of these dire predictions come true? Chanont Banternghansa, an economist at the National Bureau of Economic Research, and Kathryn Graddy, a professor in the Department of Economics at Brandeis University, decided to investigate the effect of artists’ resale rights in the UK. Their paper, “The impact of the Droit de Suite in the UK: an empirical analysis,” appeared recently in the Journal of Cultural Economics (2011) 35:2. (It is also available here, on Professor Graddy’s website.) Their results should be encouraging for those who argue that the Canadian government should adopt similar legislation to that already in force in the European Union.

Banternghansa and Graddy focused on works sold by the two major auction houses, Christie’s and Sotheby’s, from August 1, 1993 until July 31, 2007. (They excluded works sold by dealers, as prices paid and quantities sold are difficult to verify.) They made two different comparisons. First they compared those works that would be subject to droit de suite after February 1, 2006 with all art works in the UK that would not be subject to droit de suite. Next, they compared those same works (those subject to the droit de suite after February 2006), with works that were sold in other countries, but would have been subject to droit de suite if sold in the UK.

Banternghansa and Graddy found no evidence that the adoption of artists’ resale rights had a negative impact on price. They speculate that art buyers, in determining what they will pay for a given work, may not calculate the effect that the droit de suite will have on future re-sales, or that the effect may be too small to measure. As they say, given the inherent difficulty of pricing art and the high commission fees paid by both buyers and sellers, the droit de suite may not figure very largely in sellers’ thinking. Banternghansa and Graddy also found no evidence that those wishing to re-sell works subject to droit de suite had deserted the UK for other markets. However they caution that this might change when the UK extends artists’ resale rights to an artist’s heirs after his or her death.

The impact of droit de suite on the UK art market seems to have been minimal so far. Certainly, the most pessimistic forecasts have not come to pass. This might give some confidence to those who would like to see Canada also adopt a policy of artists’ resale rights.

Think Before You Type

Tens of thousands of people have now read a series of emails sent by Carolyn Bourne (a champion flower-breeder, living in Devon, U.K,) to Heidi Withers, her stepson’s fiancée, after a weekend visit. Ms Withers was apparently so shocked by the messages – which accuse her of being rude, vulgar, and committing apparently unforgivable sins such as sleeping in late and taking a second helping before being invited to do so – that she forwarded them to friends. These friends forwarded them to others, and likely before the participants knew what was happening, the conflict and the emails were being discussed in the Telegraph, the New York Times, and the Huffington Post, among other media outlets.

While no one could have predicted that email messages within an obscure British family would end up as a subject of international attention, it is worth repeating that there is no such thing as a reliably “private” email message. You simply have no way of knowing whom the recipient of your message might decide to share it with. This is just a fact of modern life. If you hold views that you don’t wish to be known generally, or have done things that you wish to remain private, don’t write about them in email.

The rumpus over Ms Bourne’s emails made me think, not so much about the perils of the internet, as about some more general problems with communication. Before transmitting any kind of message – whether on twitter, via a facebook posting, email, or handwritten note – it is essential to ask yourself what you hope to achieve by sending the message. Ms Bourne says in her email that she is writing because, “It is high time someone explained to you about good manners,” and to encourage her future daughter-in-law “for your own good” to consider enrolling in finishing school. She has adopted the classic “this is for your sake, not mine” communication strategy. But if Ms Bourne was able to be honestly self-reflective, would she really maintain that she wrote with her future daughter-in-law’s and the family’s best interests at heart? If you genuinely want to reach out and help another person, is it the best practice to confront them with a long list of their misdeeds? I suspect that Ms Bourne took a dislike to Ms Withers, was annoyed by her behaviour, and wanted to get it off her chest. And that’s OK. But she should have sought out a friend to complain to, rather than sending a message obviously intended to be hurtful.

Perhaps I’m mistaken here, and Ms Bourne really did have at heart the best interests and future happiness of her stepson and his wife. (After all, everyone deserves the benefit of the doubt.) If that was indeed the case, then next thing she needed to ask herself was, is putting all of this down in writing really the appropriate next step? One thing that email shares with old-fashioned handwritten notes is that both are monologues. The recipient has no opportunity in the moment to defend herself or explain. If you genuinely want to reach out to someone and help them, it is doubtful that a “stern talking-to,” whether delivered via email or on the finest stationery, is the ideal communication strategy.

Can your employees talk to you?

My client looked at me in exasperation. “Can they really feel as though they can’t talk to me?” I could understand his frustration. The owner of a small business with a “flat” structure, he is a genuinely nice guy who tries to be fair and thinks of himself as accessible. Why wouldn’t his employees feel like they could talk to him?

If you’re the boss and suspect that your employees may not feel comfortable approaching you, here are some things to consider:

Privacy. Is your office relatively private or can conversations be easily overheard? Some will resist approaching you if they feel the conversation might become known to others. (And it doesn’t matter how much you trust your assistant at the next desk or behind the partition. It doesn’t follow that others will necessarily feel the same way.)

Workplace Geography. Is your office set apart from the general workspace, such that it would be impossible to approach it without being seen by everyone else? People – for all kinds of different reasons – may not want to be seen “talking to the boss.”

Past history. In the past when employees have spoken with you, how have things gone? Even if it seemed the conversations went well, could you have somehow given the message that you didn’t appreciate being disturbed? If the main reason you speak with employees is to deliver reprimands, people may be reluctant to seek you out.

Do you talk to them? Maybe you’re not a “people” person. Maybe you’re more comfortable with equipment or bits of code than with conversation. If you’re uncomfortable speaking with employees, some will pick up on this and avoid talking to you, if only to spare you possible discomfort. If you suspect that you may have acquired such a reputation, the best way to counter it is to take the initiative and initiate conversation with others. You don’t have to make drastic changes. Make an attempt to have a short conversation with a different person each day. Once people see that they can have a conversation with you about matters unrelated to work, they may feel more comfortable coming to you with more sensitive topics.

You’re still the boss. No matter how great of a person you are and how approachable you make yourself, some people will always find it hard to talk to you.