Tuesday, November 22, 2016

Harassment as an OHS issue

A private member’s bill (Bill 208) has been introduced in the Alberta Legislature that amends the Occupational Health and Safety Act to prohibit workplace harassment. Chapter 6 in the OHS textbook Jason Foster and I just wrote provides some useful context on harassment and bullying.

Bill 208 defines harassment as “any inappropriate conduct, comment, display, action or gesture by a person” that constitutes a threat to the health or safety of a worker based on either a protected ground or which “adversely affects the worker’s psychological or physical well-being and that the person knows or ought reasonably to know would cause a worker to be humiliated or intimidated.”

The Act places some parameters around instances of conduct the adversely affect a worker’s well being. It notes harassment can comprise “repeated conduct, comments, displays, actions or gestures” or “a single, serious occurrence of conduct, or a single, serious comment, display, action or gesture, that has a lasting, harmful effect on the worker.” Reasonable action by the employer related to the management of workers or the worksite is not considered harassment.

The short of the rest of the obligations are that employers must now have and enforce policies around workplace harassment. (How this works if the employer is the harasser is an interesting question... .) If an employee believes the employer has botched the investigation of a workplace harassment complaint they can report the matter to Occupational Health and Safety and OHS will investigate.

Workplace harassment and bullying appears endemic. A 2014 panel study suggests 23% of workers have been bullied at work. There is a higher 2012 stat (45%) floating around, but the methodology gives me the willies so I’m going to go with this more conservative number.

In theory, Bill 208 provides a new avenue for redress (especially for non-unionized employees) around harassment. I’m not an expert in workplace bullying, but I have seen a fair bit (both at when I worked at the Labour Board and as my union’s grievance officer). The questions I have about this (quite laudable) legislation are:
  1. Bullying or tough management: As Jason and I wrote, “The line between “tough” management and “bullying” management can be difficult to ascertain, especially if the bullying takes the form of misuse of managerial prerogatives such as scheduling, work assignments, and the like.” And, “Some researchers suggest that employers may overtly or covertly encourage bullying by managers as a way to maximize the work the employer can extract from its workers.” (p.132) The note in the OHS Code that “reasonable actions by the employer” related to management do not constitute harassment will likely means “smart” bullies will be able to evade sanction. 
  2. Penalties: Alberta does a poor job of penalizing OHS offenders (e.g., prosecutions and fines are down over time), which may (partly explain) its very high rate of injury. If a worker complains and an OHS officer finds the employer botched the harassment investigation and issues an order that the employer ignores (or otherwise subverts), what happens? In theory, the OHS officer can push for an administrative penalty (i.e., a fine). There is no data I can find on how often Alberta issues these. I would guess there is little prospect of meaningful penalties so employers are most likely to create a policy (e.g., by downloading one from the web) and otherwise ignore the new requirement.
  3. Enforcement: Alberta has about 130(ish) OHS officers for 160,000(ish) employers. This level of resourcing is inadequate to meaningfully enforce the existing OHS laws. Consequently, OHS focuses its efforts on big-ticket items (e.g., fatalities, repeat offenders, bad industries). Absent more resources, it is unlikely harassment will get much attention unless there is a complaint. Complaints are, frankly, unlikely. Workers aren’t stupid and will see that employers’ ability to argue “tough management” combined with the absence of meaningful penalties means this Bill creates a right to be free of harassment that they will not be able to realize. This is the same dynamic that drives workers to not refuse unsafe work or report wage theft: they know there is little chance their report will help them out and it may make things worse.
To be fair, this Bill serves an important hortatory and educative purpose: it publically condemns this behaviour and says it is up to employers to stop it. But to make real change in the workplace is going to require government enforcement activity.

As a trade unionist, I wonder if this Bill gives firmer footing for work refusals when there is significant harassment? Specifically, could a group of workers (unionized or otherwise) collectively refuse to work for a harassing boss (i.e., wildcat) and claim such action is protected action under the OHS Code? And how would this play out in a small workplace, such as a restaurant or retail operation?

-- Bob Barnetson

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