Thomas H. Petrides, March 12, 2014
Beyond the Locker Room:
California Workplace Bullying
Issues
© Copyright 2014 by K&L Gates LLP. All rights reserved.
Your Presenter
Thomas H. Petrides
thomas.petrides@klgates.com
Phone +1.310.552.5077
In the Locker Room
 On April 6, 2013, after lineman Jonathan Martin’s rookie season in
2012 with the Miami Dolphins, veteran lineman Richie Incognito left
the following voicemail for Martin: Hey, wassup, you half n----- piece
of s---. I saw you on Twitter, you been training 10 weeks. [I want to]
s--- in your f---ing mouth. [I'm going to] slap your f---ing mouth. [I'm
going to] slap your real mother across the face [laughter]. F--- you,
you're still a rookie. I'll kill you.
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In the Locker Room
 Texts and comments from the veteran to Martin included derogatory
terms for female anatomy, including comments about Martin’s sister
and mother, slurs regarding sexual orientation, and racist comments
 Martin abruptly left the team in late October midway through the 2013
season due to “persistent bullying, harassment and ridicule” and has
not returned
 Incognito suspended from team without pay for remainder of season
and has filed a grievance regarding his suspension
 Investigation undertaken by attorney Ted Wells on behalf of the NFL
 Comprehensive 140+ page report prepared by Wells detailing
numerous incidents of harassing conduct by Incognito and other
players directed at Martin
 Report also identified other Miami Dolphin employees who were
victims of bullying and harassment
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In the Locker Room (Cont.)
Ted Wells Investigation Results
 Report recognized that “locker room” behavior of professional athletes
is more vulgar and aggressive than what would be expected in an
office setting, but this conduct even exceeded those limits
 Report concluded that the harassment in this case bears many
hallmarks of a “classic case of workplace bullying”
 persons in position of power harass the less powerful
 bullies typically choose victims who are different from them, or have low
self-esteem or who lack the skills to deal with conflict
 a typical victim is a person who is unlikely to push back when victimized
 victims are often afraid to report the bullying to their employer
 Although Martin often participated in this conduct and was friendly with
Incognito, the report noted that a such a reaction is consistent behavior
of a victim of abusive treatment, and Martin felt he had been bullied in
high school so he was particularly sensitive to bullying
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In the Locker Room (cont.)
 New York Times reported Dec. 11, 2013 that NFL players
should expect rule changes regarding behavior in locker rooms
and with teammates.
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Is Bullying the Next Big Thing?
 In our hyper-sensitive, rights-focused society, should
employers prepare for battle on a new front?
 Is bullying a societal problem crying out for a cure or just
another headache for employers?
 In this presentation, we will discuss the development of the
case against bullying, the specter of new legislation and
lawsuits asserting workplace bullying, and how employers
should prepare to deal with this developing area of the law.
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Bullying in the News
 AARP(Nov. 2013): What to Do If You Are Bullied At Work
 Essence (Nov. 2013): How to Fight Bullying At Work
 Forbes (9/20/13) How to Deal with a Bullying Boss
 Washington Post (5/28/12): Dealing with Bullies in the Workplace
 Working Mother.com (December/January 2012): Workplace Bullies
 Delta Kappa Gamma Bulletin (Winter 2011): Workplace Bullying:
Costly and Preventable
 New York Times (5/9/10): Backlash: Women Bullying Women at Work
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Common Bullying Anecdotes
 Schools
 Military
 Tom Cruise/Demi Moore movie A Few Good Men
 Although movie was fiction, bullying is disguised as
“hazing” still reportedly occurs
 Locker Room/Sports
 Children’s sports (Little League, club sports, programs,
etc.)
 Workplaces
 “Personality conflicts”
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Anti-Bullying Organizations
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Easily identified in Google searches
Encourage broad definitions of bullying
Studying bullying based on their own (varying) definitions
Increase focus/awareness
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California State Laws on Bullying
 No statewide law on bullying (yet)
 Education Code
 Safe Place to Learn Act and other provisions which
provide right to suspend/expel and which compel
school officials to intervene or take action
 Defines “bullying” generally as engaging in conduct
which causes physical/mental harm, places student in
fear of such harm, interferes with academic
performance, interferes with ability to participate in
programs, services, etc.
 Includes social media postings, impersonating another
on social media for bullying purposes
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California State Laws on Bullying (cont.)
 Assembly and Senate passed resolution in Fall 2013
 Declared December 12, 2013 as “California Bullying
Prevention Day”
 Distributed copies of the resolution
 Encouraged local governments, schools, communities,
businesses, etc. to take steps to prevent bullying of all
kinds
 Acknowledged particular kinds of bullying and adverse
effects it has had on schools, individuals, communities,
businesses, etc.
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Non-Legal Definitions:
Example Behaviors “Used in Bullying”
 Employees identified the following behaviors as “bullying”:
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Lack of feedback
Reprimands
Denial of promotion without valid reason
Targeted by rumors/gossip
Refused assistance
Withholding needed information
Silent treatment
Source: Workplace Stress and Aggression Project within U.S. Dept. of Veteran Affairs (VA Project)
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Non-Legal Definitions:
Types of Bullies
 Workplace Bullying Institute has identified four categories of bullies:
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Constant critic
Two-headed snake
Gatekeeper
Screamer
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Bullying Survey
 Workplace Bullying Institute U.S. Workplace Bullying Survey – 2010
 Online survey of over 2000 U.S. workers
 Updated similar study done in 2007
 Experience with specified types of mistreatment
 Key Claims
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54 million people (37% of workers) have been bullied at work
Bullying affects half of American adults (71.5 million workers)
Bullying is 4 times more prevalent than illegal forms of harassment
In 62% of cases, employers worsen the problem or do nothing
 Despite losing 21-28 million workers because of bullying
 72% of bullies are bosses, and 55% of those bullied are rank-and-file
workers
 Women are targeted more frequently, particularly when the bully is
another woman
 3% of bullied targets file lawsuits, 40% never complain
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Survey Results
 At work, what is your experience with any or all of the following types
of repeated mistreatment: sabotage by others that prevented work
from getting done, verbal abuse, threatening conduct, intimidation or
humiliation?
CATEGORY
2007
2010
Currently Bullied
12.6
8.8
Been Bullied, Not Now
24.2
25.7
Total: Bullying Experienced
36.8
34.5
Witnessed Only
12.3
15.5
Total: Bullying Recognized
49
50
Not Bullied/Not Witnessed
44.9
49.6
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Survey Results: Gender
 62% men
 38% women
Targets
 Perpetrators
Men
Women
Men
 58% women
 42% men
Perpetrators
34%
8%
Women
 Targets
28%
30%
 Men bullies target men in 55.5% of cases, women in 45.5%
 Women bullies target women in 79.8% of cases (up from 71% in 2007)
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Survey Results: Race
Race
Bullied Now
Been Bullied
Combined
Witnessed
Only
No Bullying
Experience
Hispanics
12.7%
23.5%
40.2%
12.3%
51.4%
AfricanAmericans
11%
27.6%
38.6%
7.9%
51.5%
Whites
7.9%
25.7%
33.6%
16.8%
49.6%
Asians
3.8%
9.7%
13.5%
37.6%
48.9%
National
Prevalence
8.8%
25.7%
34.5%
15.5%
49.6%
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Survey Results: Age
Bullying Experience
Ages 18-29
Ages 30-49
Ages 50-64
Currently Bullied
27%
50%
23%
Been Bullied, Not
Now
22%
47%
30%
Witnessed Only
29%
49%
22%
Not Bullied/Not
Witnessed
23%
48%
30%
Age Group
Currently Bullied
Been Bullied,
Not Now
Witnessed Only
Not Bullied/Not
Witnessed
18-29
11%
25%
20%
44%
30-49
11%
26%
16%
47%
50-64
9%
30%
13%
48%
Full National
Sample
8.8%
25.7%
15.5%
49.6%
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Reported Impacts on Employee
 Physical and psychological
trauma
 Ill health
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 Associated with PostTraumatic Stress Disorder
 Loss of sleep (fatigue)
 Burn-out
 Anxiety
 Frustration
 Lowered self-esteem and
efficacy
 Shame, embarrassment, guilt
 Suicide
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Stress headaches
Digestive problems, ulcers
Clinical depression
Increased risk of heart
disease
Musculoskeletal disorders
Increased blood pressure
Immunological impairment
Fibromyalgia
Chronic fatigue syndrome
CURRENT APPROACHES IN U.S. LAW
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How have the courts viewed these cases?
 What lessons can employers learn?
 What causes of action are employers likely to face?
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Federal Law
 Does not directly address bullying. Instead, harassment must be
“based on” protected category, such as sex, race, national origin
 Harassment Complaints – Deemed a form of “discrimination”
 Title VII
 “Title VII is not a civility code.” Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998)
 Disparate treatment
 Disparate impact
 Age Discrimination in Employment Act
 Americans with Disabilities Act
 Offending behavior exacerbates or creates a disability
 Defense: “equal opportunity bully”
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California Fair Employment & Housing Act
(“FEHA”)
 Prohibits harassment in employment
 “Sexual harassment” extended to include:
 Harassment based on sex or of a sexual nature
 Harassment based on sexual orientation
 Harassment based on pregnancy, childbirth or related medical
conditions
 Gender harassment (including someone of same gender)
 Harassment based on need for breastfeeding (pumping at work)
 Harassment also prohibited based on all other protected
categories, including race, age, religion, national origin,
medical condition, disability, etc.
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FEHA Definition of Sexual Harassment
 Quid pro quo
 Employment terms and conditions are based or
conditioned on sexual conduct
 Harasser in position of authority or has influence on
person in authority over victim
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FEHA Definition of Sexual Harassment (cont.)
 Hostile Environment
 Unwelcome conduct of a sexual nature or based
on/because of sex where such conduct has the
purpose or effect of unreasonably interfering with an
individual’s work performance or creating an
intimidating, hostile or offensive working environment
 Must be severe or pervasive
klgates.com
Title VII Harassment Cases
 “Mere workplace bullying is not enough to give rise to an
actionable hostile work environment claim…there must be a
showing the conduct occurred because of…membership in a
protected class.” De la Cruz v. NYC, 738 F. Supp. 2d 622 (2011)
 Yancick v. Hanna Steel Corp., 653 F.3d 532 (2011) – court described
black coworker as a “workplace bully” – confrontational, rude, and
disruptive. White plaintiff was severely and permanently injured when
coworker dropped a 940 pound steel coil on him and alleged this was
because of his race.
 Vito v. Bausch & Lomb, Inc., 403 Fed. Appx. 593 (2010) – alleged
conduct included abusive language, gender-related jokes, occasional
teasing, bullying, inappropriate physical conduct.
klgates.com
Title VII Harassment Cases
 EEOC v. NEA of Alaska, 422 F.3d 840 (9th Cir. 2005)
 Facts: Four women claimed hostile work environment created by
their male supervisor. Incidents in public included both men and
women.
 Frequently screamed and swore at employees, “invaded their
personal space”, lunged and shook his fists at an employee, stood
over employees to watch them work
 e.g., the supervisor cursed at a woman for not reading her e-mail
while she was out of town to visit her sister who was passing away
 Effect was more severe, frequent and physically threatening
towards women; general atmosphere of intimidation
 Women subjectively affected more than men
Ruling: Created hostile work environment based on sex
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Title VII Harassment Cases
 EEOC v. NEA of Alaska (Cont.)
 Must apply “reasonable woman standard” to determine
“differences in subjective effects on the sexes”
 What is offensive and hostile to a reasonable woman
 Fact that supervisor treated men and women similarly not
determinative
 Anti-harassment/discrimination laws aimed at
consequences and effects of workplace conduct, and not
just at the motivation
 Employers must counsel/discipline the “difficult” manager
klgates.com
Raess v. Doescher, 883 N.E.2d 790
Ind. 2008
 Plaintiff - hospital operating room perfusionist
 “Verbal altercation” with surgeon outside the open heart surgery area in the hospital
 Failed to return to work following the altercation, claiming to be afraid
 Defendant argued it was due to his “own stubborn pride”
 Difficulties after the altercation:
 emotional response
 lack of focus
 lack of confidence
 inability to make split-second decisions
 major depressive disorder with anxiety and panic disorder
 Court permitted testimony by expert in workplace bullying: “"I concluded that based on
what I heard and what I read that [the defendant] is a workplace abuser, a person who
subjected [the plaintiff] to an abusive work environment. It was a horrific day, it was [a]
particularly aggregous [sic], outrageous . . . episode.”
 Query: Is this really an area for expert testimony? What scientific standards apply?
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Raess v. Doescher, 883 N.E.2d 790
Ind. 2008
 Claims:
 Tortious interference with employment (dismissed on partial summary judgment)
 Assault
 IIED
 Defendant - just the surgeon, not the hospital
 At Trial:
 Plaintiff’s verdict on assault
 Defense verdict on IIED
 Results undisturbed on appeal
 Dissent noted there is no such tort as workplace bullying and the term has “no legal
definition”
 Query: If there is no legal definition, how can there be a cause of action?
klgates.com
Hypothetical? Some Background Facts
 Staff Assistant at Department of Labor
 Applied for and denied a promotion
 Alleged her supervisor added unnecessary qualifications
to prevent her from qualifying
 “Effective” performance rating, no bonus
 No mid-year appraisal
 Supervisor yelled at her and required her to put post-its
on her desk when she was away
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Hypothetical: Possible Causes of Action?
 Count 1: Disparate impact related to the qualifications
 Count 2: Retaliation for complaining about failure to
promote related to performance evaluation and bonus
 (abandoned by plaintiff)
 Count 3: Retaliatory hostile work environment for
challenging failure to promote by subjecting to “constant
yelling” and post-it instruction
 Count 4: “Workplace bullying” due to constant yelling
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Hypothetical:
Motion for Judgment on the Pleadings
Ramseur v. Perez, ___ F. Supp. 2d ___, 2013 WL 4483511(D. D.C.
Aug. 23, 2013)
 Count 1 (Disparate impact):
 Allowed to proceed
 Count 3 (Retaliatory hostile work environment):
 Allowed to proceed
 Count 4 (Workplace bullying):
 Dismissed because “workplace bullying is not an independently
cognizable claim under Title VII” but
 Allegations rolled into Count 3
 Attempted reliance on Raess v. Doescher (Ind. 2008)
 Lesson learned: these cases sometimes have staying power
klgates.com
State Law Claims
 Overlap with discrimination, harassment, retaliation from federal law
 Tort Claims
 Physical violence
 Battery
 Assault
 Psychological harm
 Intentional infliction of emotional distress
 Negligent infliction of emotional distress
 Intentional interference with contract/employment relationship
 Whistleblower protection
 Workers’ Compensation (if can show partial or full incapacitation)
 Occupational Health and Safety Statutes
 Initially focused on physical safety
 Has begun including bullying in its recent studies of workplace violence
and aggression
klgates.com
Intentional Infliction of Emotional Distress Cases
 Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011) – alleged conduct included
co-workers calling plaintiff a “b*itch” and a “f*g” on several occasions, making
inappropriate sexual comments, calling plaintiff a “snitch” and threatening to “jump”
plaintiff for telling on other co-workers for their in appropriate behavior. Court noted
that such behavior was arguably sufficiently extreme and outrageous to be actionable
but held that the record did not support an inference that plaintiff suffered severe and
emotional distress as a result of the conduct.
 Hart v. Nat'l Mortgage & Land Co., 189 Cal. App. 3d 1420 (1987) – conduct alleged
included male employee grabbing plaintiff’s genitals, grabbing his waste and trying to
mount him, making sexually suggestive gestures, and crude remarks. Court held that
such acts were not a risk of, incident to, or normal part of Plaintiff’s employment, and
thus, Plaintiff plead sufficient facts to proceed on a claim for IIED.
 Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493 (1970) – alleged conduct included
plaintiff’ supervisor shouting in a rude, violent and insolent manner: “You g*d*am
‘n****rs’ are not going to tell me about the rules. I don’t want any ‘n****rs’ working for
me. I am getting rid of all the ‘n****rs’; go pick up and deliver that 8-ton roller to the
other job site and get your pay check; you’re fired.” Not brought as racial harassment
claim, but as IIED claim.
klgates.com
Cole v. Fair Oaks Fire Protection Dist.,
43 Cal. 3d 148
 Facts: Plaintiff, a firefighter who was actively involved in the union, was allegedly
harassed on a consistent basis by his Assistant Chief. Plaintiff brought a claim for IIED
claiming that the Assistant Chief:
 Demanded Plaintiff report to a performance evaluation and possible disciplinary hearing and
refused to excuse him to attend a funeral;
 Devised a personnel evaluation procedure for the purpose of punishing Plaintiff;
 Falsely accused Plaintiff of being dishonest, which resulted in Plaintiff being demoted, publicly
stripped of his captains badge, and forced to do “humiliating and menial duties”; and
 Filed an application to force Plaintiff to retire involuntarily.
 Injury: Plaintiff suffered a severe and totally disabling stroke apparently caused by the
harassing behavior at work
 Result: Court held the Plaintiff’s claim was barred by Workers Compensation exclusive
remedy provisions as the conduct of the Assistant Chief (i.e. demotions and criticisms of
work practices) was the type to be expected to occur with substantial frequency in the
working environment, and Plaintiff could not avoid the exclusive jurisdiction of the Workers’
Compensation laws by characterizing the employer’s decisions as manifestly unfair,
outrageous, harassment, or intended to cause emotional disturbance resulting in disability
klgates.com
California: Bullying in Schools
 Fall 2012: Audrie Pott, Saratoga High School
 Drunk, passed out at party over Labor Day weekend
 Sexually assaulted, written on, photos; posted and
shared
 Suffered extreme humiliation and harassment,
resulting in suicide
 Websites: ratemyteachers.com
 Anyone can post anonymously good and bad, real or
fictitious reviews, opinions, assessments and
complaints about teachers, including k-12, college
klgates.com
Bullying Legislation
 Legislatures across the country are attempting to
address bullying
 How are they defining bullying?
 Schools
 Workplace
klgates.com
School Based Bullying Laws:
Broad Definitions

North Carolina: N.C. Gen. Stat. § 115C-407.15(a) (2010): "Bullying or harassing behavior
includes, but is not limited to, acts reasonably perceived as being motivated by any actual or
perceived differentiating characteristic, such as race, color, religion, ancestry, national origin,
gender, socioeconomic status, academic status, gender identity, physical appearance, sexual
orientation, or mental, physical, developmental, or sensory disability, or by association with a person
who has or is perceived to have one or more of these characteristics."

Washington: Wash. Rev. Code Ann. § 28A.300.285.2 (2010): "Nothing in this section requires the
affected student to actually possess a characteristic that is a basis for the...bullying."
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Florida: Fla. Stat. Ann. 1006.147(3) (2010): "(a) ‘Bullying’ means systematically and chronically
inflicting physical hurt or psychological distress on one or more students and may involve: (1)
Teasing; (2) Social exclusion; (3) Threat; (4) Intimidation; (5) Stalking; (6) Physical violence; (7)
Theft; (8) Sexual, religious, or racial harassment; (9) Public humiliation; or (10) Destruction of
property. . . . (d) The definitions of ‘bullying’ and ‘harassment’ include: (1) Retaliation against a
student or school employee by another student or school employee for asserting or alleging an act
of bullying or harassment...[and] (2) Perpetuation of [bullying or harassing] conduct ... by an
individual or group with intent to demean, dehumanize, embarrass, or cause physical harm to a
student..."

Kansas: Kan. Stat. Ann. § 72-8256.C.2 (2009): "‘Cyberbullying’ means bullying by use of any
electronic communication device through means including, but not limited to, e-mail, instant
messaging, text messages, blogs, mobile phones, pagers, online games and websites."
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Healthy Workplace Bill
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Designed to make non-status-related harassment (bullying) actionable under state law
Proposed Legislative Findings:
 Link social and economic well-being to “healthy and productive employees”
 Incorporate survey findings that between 37 and 59 percent of employees directly experience
health-endangering workplace bullying, abuse, and harassment
 List “serious harm” that “workplace bullying, mobbing, and harassment” can inflict including
feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired
immune systems, hypertension, increased risk of cardiovascular disease, and symptoms
consistent with post-traumatic stress disorder
 Also list serious consequences for employers, including reduced employee productivity and
morale, higher turnover and absenteeism rates, and increases in medical and workers'
compensation claims
 Note failure of law to address non-status-related bullying
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Healthy Workplace Bill
 Proposed Definitions:

Abusive work environment. An abusive work environment exists when the defendant, acting with
malice, subjects an employee to abusive conduct so severe that it causes tangible harm to the
employee.

Abusive conduct. Abusive conduct is conduct, including acts, omissions, or both, that a reasonable
person would find hostile, based on the severity, nature, and frequency of the defendant's conduct.
Abusive conduct may include, but is not limited to: repeated infliction of verbal abuse such as the
use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening,
intimidating, or humiliating nature; the sabotage or undermining of an employee's work performance;
or attempts to exploit an employee's known psychological or physical vulnerability. A single act
normally will not constitute abusive conduct, but an especially severe and egregious act may meet
this standard.

Malice. Malice is defined as the desire to cause pain, injury, or distress to another.

Tangible harm. Tangible harm is defined as psychological harm or physical harm.

Psychological harm. Psychological harm is the material impairment of a person's mental health, as
established by competent evidence.

Physical harm. Physical harm is the material impairment of a person's physical health or bodily
integrity, as established by competent evidence.
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Healthy Workplace Bill
 Proposed Unlawful Employment Practices:

(a) Abusive Work Environment. It shall be an unlawful employment practice under this Chapter to
subject an employee to an abusive work environment as defined by this Chapter.

(b) Retaliation. It shall be an unlawful employment practice under this Chapter to retaliate in any
manner against an employee who has opposed any unlawful employment practice under this
Chapter, or who has made a charge, testified, assisted, or participated in any manner in an
investigation or proceeding under this Chapter, including, but not limited to, internal complaints and
proceedings, arbitration and mediation proceedings, and legal actions.
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Healthy Workplace Bill
 Proposed Employer Liability and Defense:

(a) An employer shall be vicariously liable for an unlawful employment practice, as defined by this
Chapter, committed by its employee.

(b) Where the alleged unlawful employment practice does not include an adverse employment
action, it shall be an affirmative defense for an employer only that:

(1) the employer exercised reasonable care to prevent and correct promptly any actionable
behavior; and,

(2) the complainant employee unreasonably failed to take advantage of appropriate preventive or
corrective opportunities provided by the employer.
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Healthy Workplace Bill
 Proposed Employee Liability and Defense*:

(a) An employee may be individually liable for an unlawful employment practice as defined by this
Chapter.

(b) It shall be an affirmative defense for an employee only that the employee committed an unlawful
employment practice as defined in this Chapter at the direction of the employer, under threat of an
adverse employment action.
*Sometimes omitted from legislation when introduced
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Healthy Workplace Bill
 Proposed Affirmative Defenses:

It shall be an affirmative defense that:

(a) The complaint is based on an adverse employment action reasonably made for poor
performance, misconduct, or economic necessity;

(b) The complaint is based on a reasonable performance evaluation; or,

(c) The complaint is based on a defendant's reasonable investigation about potentially illegal or
unethical activity.
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Healthy Workplace Bill
 Proposed Relief:
 (a) Relief generally. Where a defendant has been found to have committed an unlawful
employment practice under this Chapter, the court may enjoin the defendant from engaging in
the unlawful employment practice and may order any other relief that is deemed appropriate,
including, but not limited to, reinstatement, removal of the offending party from the
complainant's work environment, back pay, front pay, medical expenses, compensation for
emotional distress, punitive damages, and attorney's fees.
 b) Employer liability. Where an employer has been found to have committed an unlawful
employment practice under this Chapter that did not culminate in an adverse employment
action, its liability for damages for emotional distress shall not exceed $25,000, and it shall not
be subject to punitive damages. This provision does not apply to individually named employee
defendants.
 Enforcement:
 Private right of action
 One year statute of limitations
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Pending Legislation: Healthy Workplace Bill
Credit: http://www.healthyworkplacebill.org/
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PROACTIVE SOLUTIONS FOR US
EMPLOYERS
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Reported Impact on Employers
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Decreased productivity
Negative impact on creativity and innovation
Increased absenteeism, presenteeism
Decreased morale
Disengagement/preoccupation
Decreased effectiveness
Retention problems
Increased risk of workplace violence
Fatigue-induced errors/accidents
Litigation and settlement expenses
Workers’ compensation/disability
Talent flight
Negative PR – “worst place to work”
Erosion of integrity
Damaged customer relationships
Increased risk of union activity
klgates.com
Employer Actions



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





Open door policy
Become familiar with existing workplace culture
Directly address bullying behavior when it arises
Create checks and balances to limit or review the power of
supervisors over subordinates
Take seriously employee complaints about unfair treatment by bosses
Consider implementing a policy specifically targeted at bullying
Train employees and supervisors regarding your policies
Ensure that top management is on board with the policy
Get engaged in state discussions on this legislation: make clear that
vague and ambiguous laws will not help address this concern in a
constructive way.
Be leaders in promoting good HR practices that will help nip bullying
in the bud.
klgates.com
Sample Anti-Bullying Policy
Proposed by the Washington State Department of Labor & Industries,
adapted from the Commission of Occupational Safety and Health,
Government of Western Australia
klgates.com
Conclusion
 Questions and Answers
klgates.com
53
Thomas H. Petrides
Partner
Los Angeles
T 310.552.5077
F 310.552.5001
thomas.petrides@klgates.com
OVERVIEW
Mr. Petrides is the head of the Southern California Labor and Employment practice group and is a
member of the Firm’s Litigation group. He represents management in all aspects of labor and
employment law, including employment related litigation and traditional labor law proceedings.
Mr. Petrides regularly counsels a broad spectrum of clients on issues such as terminations,
employment discrimination, wage and hour, FMLA, ADA, OSHA, employment policies, trade
secrets, and union avoidance.
He has extensive litigation experience at all procedural levels, including successful trials and
appeals, on issues covering virtually every area of employment law. He also has handled
numerous administrative proceedings before various state and federal agencies, as well as
arbitrations before private tribunals.
His traditional labor experience includes the representation of management on scores of
negotiations, arbitrations and organizing campaigns. He has also represented employers in
numerous proceedings before the NLRB, including bargaining unit determinations, election
objections, and unfair labor practice charges.
Mr. Petrides has represented clients from a wide variety of industries and trades, including
banking and financial services, telecommunications, manufacturing, construction, transportation,
hospitality, health care, high tech, retail, and service industries.
PROFESSIONAL BACKGROUND
Mr. Petrides has practiced exclusively in the area of labor and employment law on behalf of
management for more than 20 years.
PROFESSIONAL/CIVIC ACTIVITIES
• State Bar of California (Labor and Employment Law Section)
• American Bar Association, Section of Labor and Employment Law (Committee on the
Development of the Law Under the National Labor Relations Act)
PRESENTATIONS
Mr. Petrides has been a frequent lecturer to a variety of employer groups, on issues such as
wage and hour, sexual harassment, employee discipline and termination, and reductions in force.
Thomas H. Petrides (continued)
ADMISSIONS
• California
• California State Courts
• United States District Court for the Central, Northern, Southern and Eastern Districts of
California
• United States Court of Appeals for the Ninth Circuit
EDUCATION
J.D., University of Southern California, 1984 (Hale Moot Court Honors Program: Participant,
1982-83; Editor, 1983-84. President, USC Student Bar Association, 1983-84.)
A.B., Boston College, 1981 (cum laude)
California Employment Law Practice
INTRODUCTION
California employment law is significantly different from federal
employment law and provides California employees with
substantially broader protections in the areas of discrimination,
wage and hour, family care and medical leave, disability
protection and trade secrets. For example, California requires
payment of overtime after eight hours worked in a day and
double-time after 12 hours. Additionally, the overtime exemptions
under California law are much harder to establish than the federal
exemptions, and non-exempt employees must be given a minimum half-hour “non-working”
unpaid meal period each day and two 10-minute paid rest breaks.
California also provides the right to take up to four months of unpaid disability leave in addition to
twelve weeks of family care leave for pregnancy-related disabilities and child birth, so that eligible
employees can take up to nearly seven months of unpaid leave and still be guaranteed
reinstatement. Out-of-state employers are also sometimes surprised to learn that covenants not
to compete are generally unenforceable in California.
California also is consistently on the cutting edge of extending employee rights. In recent years,
California has enacted legislation that:
• Significantly broadened the state definition of “disability” under California discrimination law
so that it is much broader than the federal definition under the ADA.
• Enacted the nation’s first “paid” family leave statute.
• Created a “Private Attorneys General Act” that permits an aggrieved employee to seek civil
penalties on behalf of all aggrieved employees for almost any violation of the Labor Code.
• Allowed employees to use one-half of their accrued sick leave to care for ill family
members.
• Provided premium wages and penalties to employees who do not take a half-hour
uninterrupted lunch break.
• Included sexual orientation as a protected class under the state’s employment
discrimination law, and expanded the definition of “gender” to include “gender identity” (i.e.,
“transsexual”).
• Required employers with 50 or more employees to provide two hours of mandatory sexual
harassment training to all supervisors and managers at least once every two years.
• Provided a new cause of action under state discrimination law against employers who fail
to engage in an “interactive process” with respect to disabilities.
• Enacted legislation to protect employees who are victims of domestic violence or who are
witnesses in criminal or civil actions.
The significant differences between California and federal employment law mean that even
California employers who fully comply with federal employment law may still be violating
California law. The differences also mean that national companies with California sites who are
unfamiliar with California law may find themselves as defendants in employment-related litigation,
including class action litigation. That is why employers with California operations need
employment lawyers who understand and are experienced in California employment law.
CALIFORNIA LAWYERS WITH NATIONAL RESOURCES
K&L Gates’ California offices in San Francisco, Palo Alto, Los Angeles, Orange County, and San
Diego combine experience in the California market with the skills, resources and reputation of
one of the nation’s largest and most well-respected law firms. Our California employment lawyers
understand California employment law and have the experience and skill to guide employers
through the sometimes bewildering maze of employment regulations and laws. We provide
clients with state-wide coverage in all areas of labor and employment law, from advice and
counseling to litigation defense in state and federal courts.
CALIFORNIA EMPLOYMENT LAW SERVICES
In addition to providing all of the labor and employment services as described in the firm’s
national Labor & Employment Law practice materials, K&L Gates’ employment law services in
California also include and focus on:
• Wage and Hour Law and Class Action Defense. Litigation, particularly class and
collective action litigation, has exploded in this area, and California employers face
substantial potential liability for misclassifying nonexempt employees and failing to comply
with the California Wage Order requirements. We advise employers on how to comply with
state and federal wage and hour obligations and defend employers from wage and hour
claims in both administrative and judicial forums, including class action defense.
• Defense of Discrimination and Wrongful Termination Claims. We represent
employers in connection with EEOC, DFEH and other administrative agency investigations
and proceedings, as well as litigation in state and federal courts. We have a proven track
record of successfully defending employers by obtaining summary judgments and defense
verdicts in front of California juries.
• Family Care and Medical Leave/ADA Compliance. Our attorneys assist clients in
navigating the overlapping and sometimes competing obligations under state and federal
law in the areas of family care and medical leave, disability law, workers’ compensation
leave, pregnancy disability leave and the newly enacted Paid Family Leave, including
issues such as leaves of absence and reasonable accommodation.
• Harassment Prevention and Other Training. Our attorneys provide a wide range of
employment-related training geared towards in-house counsel, HR personnel, supervisors
and managers, or employees, depending on the needs of the client. Training topics
include the mandatory sexual harassment prevention training required by AB 1825,
documenting performance issues, conducting workplace investigations, wage and hour
compliance, and union avoidance.
California Employment Law Practice
• Independent Contractor Issues. Our attorneys assist clients in navigating the complex
laws governing appropriate classification of workers as independent contractors to
minimize risks of claims from the contractors (such as claims for employee benefits) and
from various government agencies (such as the California Employment Development
Department and the state Labor Commissioner) and defend employers in such
proceedings, as well as any proceedings in state and federal courts.
• Client Counseling. We counsel employers in all areas of California and federal
employment law to make sure our clients understand the differences between the laws and
know how to comply with both, including: hiring, discipline and discharge; privacy rights;
drug and alcohol testing; employment agreements; and employee handbooks. Our
attorneys assist clients in discipline, termination and other actions to minimize the risks of
discrimination and wrongful termination claims.
• Employment Practices Audits. We offer employment practices audits to help clients
identify areas of vulnerability and engage in preventive maintenance with a special
emphasis on California law. Clients find our audits to be particularly helpful in the areas of
employment policies and wage and hour practices.
K&L GATES’ CALIFORNIA EMPLOYMENT LAWYERS
We have a diversified and experienced team of employment lawyers in both Northern and
Southern California:
Christopher J. Kondon. Mr. Kondon is a partner in the Los Angles office and represents
employers in administrative and judicial forums in all areas of employment litigation. He also
counsels employers in employment issues such as discrimination, employee relations, and
restrictive covenants. Education: Loyola Law School (J.D.); Univ. of Colorado (B.A.).
Jon Michaelson. Mr. Michaelson is a partner in the Palo Alto office. He counsels clients in all
areas of employment law and has represented employers in federal and state courts throughout
California in wrongful termination, discrimination, harassment, trade secret and unfair competition
cases. Mr. Michaelson has particular experience assisting California technology start-up
companies with their employment and related legal needs. Education: University of California at
Berkeley, Boalt Hall School of Law (J.D.); University of Texas at Austin (M.A.); Pomona College
(B.A.).
Thomas H. Petrides. Mr. Petrides is a partner in the Los Angeles office and practices
exclusively in the area of employment and labor law. Mr. Petrides has broad litigation experience
on issues covering virtually every area of employment law. He also has extensive traditional
labor law experience and has represented management in collective bargaining negotiations,
arbitrations, organizing campaigns, and NLRB proceedings. He is a frequent lecturer to employer
groups on issues such as wage and hour law, sexual harassment, employee discipline and
termination, and work force reductions. Education: University of Southern California (J.D.);
Boston College (A.B.).
Paul W. Sweeney, Jr. Mr. Sweeney is the Administrative Partner of the Los Angeles office. He
has been lead counsel in all major areas of employment law, including discrimination, wage-hour,
wrongful termination, and trade secrets suits. His practice also includes advising employers on
such diverse employment topics as discipline, termination, trade secrets and unfair competition,
and employee handbooks. He is a frequent speaker on employment topics and has been an
California Employment Law Practice
instructor for the Continuing Education of the Bar on employment law. Education: Columbia
University (J.D.); University of Southern California (B.S.). Community Service: Board of
Directors, Hollywood Wilshire YMCA, Public Counsel, and Thurgood Marshall College Fund.
Linda L. Usoz. Ms. Usoz is a partner in the Palo Alto office and practices almost exclusively in
the area of employment and labor law. Ms. Usoz has broad experience in litigating numerous
issues covering all aspects of employment law, including discrimination, wrongful termination,
drug use, sexual harassment, invasion of privacy, violation of employee rights, and trade secrets.
She regularly counsels employers of all sizes on personnel administration matters, including
employee handbooks, employee and manager training, reductions in force, wage and hour
issues, investigations of employee wrongdoing, affirmative action, employment contracts, hiring
and firing of employees, and all other aspects of personnel administration. She is a frequent
speaker at various seminars, covering topics on human resources administration, discrimination,
wage and hour, wrongful termination, Americans with Disabilities Act, sexual harassment, and
numerous other employment-related topics. Education: University of Minnesota (J.D.); Carleton
College (B.A.); University of Lancaster, Lancashire, England (business law and economics
studies).
Christina Goodrich. Ms. Goodrich litigates in courts throughout the country. She focuses her
practice on intellectual property, writs and appeals, federal practice, commercial disputes, and
labor and employment. She regularly consults on appeals in federal and state court. Following
law school, she held both district court and appellate court clerkships. Education: Loyola Law
School (J.D.), University of California at Los Angeles (B.A.).
Nancy Hagan. Ms. Hagan focuses her practice on employment litigation and complex business
disputes. She has experience representing public and private companies in individual and class
action lawsuits involving wage and hour violations, restrictive covenants, employment
discrimination, breach of contract, unfair business practices, fraud, and false advertising. In
addition, she has handled appellate cases, successfully arguing before the California Court of
Appeal. Education: University of Southern California (J.D.), Harvard University (B.A.).
Matthew B. O'Hanlon. Mr. O'Hanlon practices in the area of commercial litigation and
employment disputes, including the defense of wrongful termination, discrimination, retaliation,
harassment, and other violations of California and federal employment laws. Education:
Washington University School of Law (J.D.), Columbia University (B.A.).
Angelo L. Primas. Mr. Primas focuses his practice on commercial litigation, including
employment discrimination, products liability, and complex business disputes. He has experience
representing public and private companies in lawsuits involving employment discrimination and
harassment, wrongful termination, breach of contract, unfair business practices, leaves of
absence, and wage and hour violations. Mr. Primas also has experience advising clients on
various labor and employment issues, drafting employee policy handbooks, and conducting
California mandated sexual harassment trainings. Education: Loyola Law School - Los Angeles
(J.D.), Loyola Marymount University (B.A.).
Saman Rejali. Ms. Rejali focuses her practice on employment litigation and complex business
disputes. She has represented public and private companies in lawsuits involving claims of
employment discrimination, wrongful termination, breach of contract, unfair business practices,
and fraud, and has advised companies on a wide range of employment matters, including wage
and hour issues, restrictive covenants, discrimination, and wrongful termination. Education:
Pepperdine School of Law (J.D.), University of California, Berkeley (B.A.).
California Employment Law Practice
KEEPING CLIENTS UP TO DATE
K&L Gates periodically publishes K&L Gates Alerts and California Employment Law Alerts to
keep employers up to date on employment law issues and to provide practical advice on how to
handle workplace situations. We also offer breakfast briefings and half-day or all-day workshops
to keep clients aware of emerging employment and labor law issues and the potential impact on
their businesses.
REPRESENTATIVE CLIENTS
Our clients range in size from Fortune 100 corporations to mid-sized companies and small familyowned businesses. We represent both private and public employers, and profit and nonprofit
entities. Industries in which we represent clients include manufacturing, communications,
financial services, retail, transportation, food services, entertainment, consumer products,
engineering, technology and e-commerce.
CONTACT INFORMATION
For more information about K&L Gates’ California employment law services, please contact any
of the attorneys listed below:
Los Angeles Office
Thomas H. Petrides
Paul W. Sweeney, Jr.
310.552.5077
310.552-5055
thomas.petrides@klgates.com
paul.sweeney@klgates.com
Palo Alto Office
Jon Michaelson
Linda L. Usoz
650.798.6704
650.798.6702
jon.michaelson@klgates.com
linda.usoz@klgates.com
San Francisco Office
Linda L. Usoz
650.798.6702
linda.usoz@klgates.com
California Employment Law Practice
LABOR, EMPLOYMENT AND
WORKPLACE SAFETY PRACTICE
Labor and employment laws, disgruntled employees, and aggressive government agencies present constant challenges for companies of all sizes, whether
regional, national or multinational. Employees and enforcement agencies scrutinize every action by employers, trying to identify or create claims. Moreover,
in an ever-changing economic climate, employers of every size and scope are
examining their employee and contractor ranks to ensure a good fit with their
operational strategy.
Whether struggling with current compliance or disputes, entering new markets,
growing through acquisition or merger, or
downsizing the enterprise, employers need
skilled labor and employment advisors to
ensure the smoothest possible path to meet
company goals. With more than 160 experienced practitioners on five continents, the
labor, employment, and workplace safety
practice of K&L Gates is well positioned to
assist employers with a full range of basic
and complex needs in employment and
labor law.
Our Capabilities
Our management-side practice means that
we represent employers rather than employees. Our global team provides employer
clients with a full spectrum of businessfocused legal advice on employment and
labor law issues.
Compliance and Advice
We advise clients on enterprise-wide
labor and employment strategies, provide
day-to-day counsel and advice, and help
For the fourth year running, K&L Gates’
U.S. labor and employment practice
was recognized as a Tier 1 national
employment practice in the U.S. NewsBest Lawyers ® survey of major companies
and lawyers throughout the United States.
clients build and execute best practices to
minimize exposure to litigation. We draft
complex agreements and compensation
plans, and help clients develop handbooks,
policies, procedures, and training. And,
we work with clients to assess or conduct
focused or enterprise-wide audits of their
legal compliance.
Disputes and Litigation
We assist our clients when disputes first
arise to assess and minimize risks, and to
resolve any issues before litigation when
possible. Should litigation arise, we have a
deep and geographically-diverse bench of
trial advocates who represent our clients’
interests effectively and efficiently. We have
successfully handled high-stakes noncompete disputes with managers and corporate
executives; we have successfully defended
hundreds of class actions involving putative classes up to hundreds of thousands
of employees and possible damages into
the billions of dollars; we have gone to war
with government agencies that seem to be
focused on damaging instead of encouraging business; and we have routinely tried
and won individual discrimination, disability
accommodation, wrongful discharge, retaliation, FMLA, ERISA, WARN Act, and wage
and hour lawsuits.
Labor Unions and European
Works Councils
We assist our clients with all aspects of
traditional labor law, including counseling,
union avoidance, statutory recognition
processes, union campaigns, grievance
processing, collective bargaining, representation before the National Labor Relations
Board, and assistance with EU social policies and works councils.
Immigration
Our Recognitions
We assist employers to put the right people
to work where they are needed through
labor certification and the full range of
temporary and permanent employment
visa options, whether inbound to the
United States, Europe, the Middle East,
Australia, or Asia, or outbound to new locations and regions.
For the fourth year running, K&L’s labor
and employment practice was recognized
as a Tier 1 national employment practice
in the U.S. News-Best Lawyers ® survey of
major companies and lawyers throughout
the United States. Our team garnered
national first-tier rankings in three discrete
employment and labor areas:
Benefits
Business Transactions.
We assist our clients and their business
attorneys with the employment issues that
arise as companies grow or consolidate.
We conduct due diligence in cross-border
transactions to identify areas of risk,
and we assist with the integration of new
workforces. We address employee mobility
issues, including trade secret and noncompete disputes. And, we assist with executive
and expat agreements and the movement of
key employees across borders.
Working closely with our tax and benefits
team, we assist employers to ensure their
benefit plans are in compliance around the
world. We conduct global plan compliance
reviews, including sourcing and supervising
local counsel in jurisdictions outside
our footprint.
Workplace Safety
Our Australian workplace safety team counsels employer clients in high risk industries
including mining, construction, energy,
transport, agriculture and manufacturing.
We respond to onsite incidents, liase with
investigators and regulators and defend
employers in criminal prosecutions.
• Employment Law – Management
• Employee Benefits (ERISA) Law
• Litigation – Labor and Employment
Our labor and employment group also
received 16 first-tier rankings in key locations throughout the United States. Our
team is also ranked in Chambers Global,
Chambers UK, Chambers Asia Pacific,
and Chambers USA. Our Australian practice was recognized as Employment Law
Firm of the Year at the 2012 ALB Australian Law Awards. These rankings reflect
our commitment to provide our clients
with the best possible service
and representation.
With more than 160 experienced practitioners on five
continents, the labor, employment, and workplace
safety practice of K&L Gates is well positioned to assist
employers with a full range of basic and complex needs
in employment related law.
11217
Learn more at klgates.com.
Anchorage Austin Beijing Berlin Boston Brisbane Brussels Charleston Charlotte Chicago Dallas Doha Dubai Fort Worth Frankfurt
Harrisburg Hong Kong Houston London Los Angeles Melbourne Miami Milan Moscow Newark New York Orange County Palo Alto Paris
Perth Pittsburgh
Portland
Raleigh Research Triangle Park
San Diego
San Francisco
São Paulo
Seattle
Seoul Shanghai
Singapore
Spokane Sydney Taipei Tokyo Warsaw Washington, D.C. Wilmington
K&L Gates practices out of 48 fully integrated offices located in the United States, Asia, Australia, Europe, the
Middle East and South America and represents leading global corporations, growth and middle-market companies,
capital markets participants and entrepreneurs in every major industry group as well as public sector entities,
educational institutions, philanthropic organizations and individuals. For more information about K&L Gates or its
locations, practices and registrations, visit www.klgates.com.
This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard
to any particular facts or circumstances without first consulting a lawyer.
©2013 K&L Gates LLP. All Rights Reserved.
At-a-Glance
Number of lawyers
More than 2,000
Offices
48 on five continents: Anchorage, Austin, Beijing, Berlin, Boston, Brisbane, Brussels, Charleston,
Charlotte, Chicago, Dallas, Doha, Dubai, Fort Worth, Frankfurt, Harrisburg, Hong Kong, Houston,
London, Los Angeles, Melbourne, Miami, Milan, Moscow, New York, Newark, Orange County, Palo Alto,
Paris, Perth, Pittsburgh, Portland, Raleigh, Research Triangle Park, San Diego, San Francisco, São
Paulo, Seattle, Seoul, Shanghai, Singapore, Spokane, Sydney, Taipei, Tokyo, Warsaw, Washington,
D.C., and Wilmington.
Our Firm
K&L Gates is aligned with leading organizations around the world.
• The National Law Journal ranked K&L Gates No. 8 in its 2012 list of the 250 largest law firms.
• For the fourth consecutive year, K&L Gates was ranked among the top two law firms for first-tier
rankings in the 2014 U.S. News-Best Lawyers® survey of “Best Law Firms,” with more than 200
first-tier rankings across the United States.
Our Litigation Practice
Our team of more than 800 litigation lawyers has the breadth and depth of experience and the capability
to address both routine and complex engagements in an efficient and cost-effective manner.
• Citing K&L Gates’ litigation accomplishments, DuPont has awarded the firm its Challenge Award in
six separate years for extraordinary achievement within its Global Primary Law Firm Network.
• From Berlin to Beijing, K&L Gates’ litigators have recognized experience in nearly every state and
federal court in the United States, including the U.S. Supreme Court; all divisions of the High Court,
the Court of Appeal, and the House of Lords in England; multi-jurisdictional disputes in Asia,
Europe, the Middle East, North Africa, Russia, and many states from the former Soviet Union; and
offshore tax jurisdictions.
• Our Labor, Employment and Workplace Safety practice – with more than 160 experienced
practitioners on five continents– represents management in all aspects of employment and labor
law. We defend all types of employment litigation, including discrimination and wage and hour class
actions, whistleblower claims, and enforcement of non-competition agreements.
• For the fourth year running, K&L Gates’ U.S. labor and employment practice was recognized as a
Tier 1 national employment practice in the U.S. News/Best Lawyers® survey of major companies
and lawyers throughout the United States.
Our Corporate and Transactional Practice
Whether you are buying or selling a business, or addressing governance and compliance matters, our
nearly 500 corporate and transactional lawyers are focused on one objective—helping companies
achieve their business goals.
• U.S.News–Best Lawyers® 2012 survey ranked K&L Gates as a national first-tier firm for Corporate
Law, Mergers and Acquisitions Law, Securities/Capital Markets Law, Securities Regulation, and
Private Fund/Hedge Funds Law.
• Mergers & Acquisitions magazine named K&L Gates 2012 “Law Firm of the Year” for Mid-Market
M&A.
Our Policy and Regulatory Practice
K&L Gates’ nearly 50 lawyers and policy professionals guide clients through regulations set forth by
governments at all jurisdictional levels in the United States, the United Kingdom, Asia, and other venues
around the world.
• K&L Gates was ranked in 2013 among the nation’s five most influential law firms in lobbying and
government policy work (based on The National Law Journal’s Influence 50 survey). K&L Gates’
Public Policy and Law Group has more than 500 years of combined experience in federal and state
government, and has thrived through eight Administrations and 21 Congresses.
Our Financial Services Practice
More than 150 lawyers in offices around the world spend the majority of their time providing legal services
to the investment management, professional investor and financial institution communities.
• The National Law Journal identified K&L Gates as a “go-to” law firm for Financial America.
Our Intellectual Property Practice
K&L Gates has more than 225 lawyers, including approximately 100 registered patent lawyers, agents,
and technology specialists with technical or advanced science degrees, who devote their practices to
helping clients establish, enforce, and leverage their intellectual property rights worldwide.
• In 2013, the National Law Journal named our practice to its “IP Hot List” of the top practices in the
U.S.
Our Real Estate Practice
K&L Gates has extensive experience in all areas of real estate law and transactions, from development
and construction, to leasing and acquisitions, to various financing matters, to tax advice and entity
structuring, to real estate services and real estate litigation.
• Our real estate practice is more than 200 lawyers strong, with many leaders in their respective
fields.
Our Energy, Infrastructure & Resources Practice
K&L Gates serves clients in every aspect of the global energy, infrastructure, and resources space,
including project sponsors and developers in power generation, renewable energy, oil & gas, mining,
transportation, and social infrastructure, as well as development banks, government agencies, and
contractors involved in financing, building, and operating energy and infrastructure projects.
• The U.S. News-Best Lawyers® survey ranked K&L Gates as a national first-tier firm for Energy
Law, Construction Law, Environmental Law, and Construction Litigation.
Our Finance Practice
• Approximately 150 lawyers focus on Banking and Asset Finance, Debt Capital Markets, or
Restructuring and Insolvency.