Pig of a Businessman.jpgWorkplace bullying was front and center this week as the Miami Dolphins organization scrambled to address reports that its starting offensive tackle Jonathan Martin left the team indefinitely because of bullying from teammates.

ESPN reported that this bullying included Mr. Martin’s teammate, Richie Incognito, leaving Martin the following (disturbing) voicemail after Mr. Martin was drafted by the Dolphins:

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.

ESPN initially reported that Mr. Martin did not file a formal complaint against Mr. Incognito or the Miami Dolphins. However, NFL.com reported that the Dolphins were apparently aware of Mr. Martin’s situation since the spring. Mr. Martin has since filed a formal complaint that is being reviewed by the NFL and Mr. Incognito has also been suspended.  

Workplace Bullying and Legal Risks

Certainly Mr. Martin’s situation is an unfortunate and illustrates the acidic environment that is created by workplace bullying. Such mistreatment can range from verbal abuse, intimidation, humiliation, or outright sabotage. And an employee on the receiving end of such bullying may suffer a loss of self-esteem, long-term physical or mental health issues, and a loss of productivity.

But while workplace bullying is unfortunate, employment attorneys, including me, generally focus on eliminating or reducing workplace bullying mostly because of the threat of litigation that employers face – not to right every workplace wrong. Building on this point, the reality is that federal and Michigan employment law is not perfect and is certainly not intended to promote a utopian workplace. And not every instance of workplace bullying or mistreatment will be unlawful under federal or employment law. 

Workplace Bullying and Workplace Disruption

Even so, the reality for employers is they simply cannot afford to ignore the high cost of bullying. And it has a real and substantial cost to employers. Consider the following: 

  • Employees that experience workplace bullying often take time off to cope with the behavior. Case in point, Mr. Martin opted to not play against the Cincinnati Bengals last week and has left the team indefinitely. Prior to this incident, Mr. Martin had started all 21 games of his NFL career. 
  • The costs associated with disability leaves and absenteeism can be substantial and goes straight to the employer’s bottom line. Returning to Mr. Martin, according to Spotrac, he signed a 4-year contract upon entering the league in 2012 worth $4.8 million with $2.9 million guaranteed. Mr. Martin was to be paid for the remainder of the 2013 NFL season $607,466. If Mr. Martin never returns to Miami and even if Miami is only out the guaranteed portion of this contract this is obviously a substantial financial investment lost on the part of the Dolphins organization because of workplace bullying. But it is far from clear, however, that Miami – under the circumstances – would limit its financial loss to the guaranteed portion of Mr. Martin’s contract.    
  • On top of the salary issues, the Miami Dolphins will have to expend time and money on managing the public relations aspect of this situation. 
  • In addition to quantifiable monetary losses, Miami Dolphins, like any employer, compete for talent. And organizations that become known for having a bullying culture or are indifferent to such a culture should expect to be at a disadvantage in terms of recruiting and retaining that talent.

Workplace Bullying and Workplace Recommendations

For business owners, before losing a good worker or having the workplace environment deteriorate into an acidic one, it makes sense to include bullying – even conduct that may not be unlawful discrimination – into the standard human resource reporting and investigation procedure, along with conduct that may amount to unlawful discrimination. Setting aside the positive benefits of maintaining a bully-free workplace, it is unrealistic to assume that bullying or similar mistreatment will not cross over to unlawful workplace harassment.  

Additionally, management should be educated about being aware to proactively being on the lookout for inappropriate workplace misconduct. This is especially true as the Jonathon Martin case illustrates because not every employee will come forward to report workplace bullying. And while failing to take advantage of an employer’s anti-harassment policies certainly provide legal defenses, employers still must deal with the internal disruption caused by such conduct, whether reported or not. Just ask the Miami Dolphins. 

For more information about the legal issues relating to workplace harassment, investigating workplace misconduct, or drafting anti-harassment policies and employee manuals, contact Jason Shinn. Mr. Shinn is a Michigan employment attorney. He routinely provides employment law counseling to companies and represents them and individuals in employment discrimination claims filed in federal and Michigan courts.