Bullying and FMLA– Most of us go to work with the idea that we can focus on performing our jobs. Unfortunately, some co-workers harass or bully at work. There is no federal law or state law that directly prohibits workplace bullying. In other words, there is no law that prohibits workplace bullying without “strings attached.” Under current law to sustain a civil lawsuit, an employee must show that he or she is being bullied due to:
1) some protected quality about him or herself (e.g. sex, race, age, disability, religion);
2) some protected activity that he or she engaged in (e.g. whistleblowing or refusing to do something at work that would be harmful to the public);
or (in the absence of 1 or 2)
3) that the bullying conduct is so extreme and outrageous, that it goes beyond all possible bounds of decency, and is shockingly atrocious and utterly intolerable in civilized society.
Number 3 obviously sets a high bar for the employee because some courts have held that even criminal threatening done with malice does not reach the height required by option 3. Rather, Courts have held that workplace bullying is eligible for suit under option 3 only if the bullying conduct is so shocking as to be outside the realm of all decency and the conduct is done with the knowledge that it will cause extreme emotional distress in the victim.
FMLA May Help
So, what is an employee to do when suffering from psychological trauma due to workplace bullying that is unrelated to employee’s protected status and may not satisfy the very high bar of option 3? One legal entitlement available to an employee working for a fairly large employer (50+ employees), for greater than a year, is taking leave under the (FMLA). And, taking advantage of this legal entitlement is, in almost all cases, a better choice for the employee than impulsively quitting.
Here is why.
Impulsively quitting will make it more difficult, if not impossible, to obtain unemployment benefits.
Impulsively quitting will make much more difficult, if not impossible, to support a potential workers’ compensation claim for your psychological injury;
Impulsively quitting will make legal claims under options 1 and 2 above extremely difficult if not impossible to sustain;
Taking FMLA leave will place the employer of a serious (by definition) problem with its employees, costing it time and energy, which may motivate it to remediate the situation;
Even if the employer does not take steps to remediate upon notice of an employee’s need to take FMLA due to workplace motivated trauma, the employee by taking FMLA leave will “buy time,” while outside of the toxic work environment, for him or her to be able to rationally investigate and analyze a claim under options 1 and 2.
Employees with Short Term Disability benefits may make use of these benefits while on FMLA leave, affording some income.
If you are being bullied at work, we encourage you to contact us for a no-cost initial consultation, to see if we may be of assistance. Contact one of our employment law attorneys at Douglas, Leonard & Garvey, P.C. Call us at (603) 288-1403 or fill out our online contact form.