By David B. Weisenfeld
Special to THELAW.TV
As you've probably heard, Miami Dolphins offensive lineman Richie Incognito has gone from being able to walk (pardon the pun) incognito down any street outside the Miami area to being the new poster boy for workplace bullying. Incognito's alleged harassment and racial barbs at African-American teammate Jonathan Martin came to light when Martin left the team after being the target of one prank too many.
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There is still much to learn about what really happened. But what we do know is this uproar is unlikely to go away any time soon. Questions remain, including whether a coach asked Incognito "to toughen up Martin." The NFL has hired high-powered crisis attorney Ted Wells to investigate the matter, including the team's workplace culture.
Meanwhile, both players remain away from the Dolphins — Incognito because he has been suspended indefinitely, while Martin remains out by choice. However, there is no evidence the alleged victim's teammates would welcome him back as they have publicly supported Incognito.
Whatever the end result, the story offers important reminders about workplace bullying and harassment:
1. Develop A Solid Complaint Procedure
Workplace bullying presents a host of risks — including possible litigation, damaged employee morale, and harm to a business's bottom line. So it is critical that employers have an antibullying policy in place. This should be a zero tolerance policy that presents examples of prohibited conduct.
But a policy without a clear complaint procedure in place is little more than "lip service." As a result, employees must be given instructions on where to turn if they believe that they are being victimized by coworkers. This includes identifying individuals in an organization who will address complaints and handle them.
2. Have Strong Leaders In Place
Before Jonathan Martin left the Dolphins, his agent called Dolphins General Manager Jeff Ireland to complain that his client was being abused. Ireland reportedly told the agent that Martin should just go "punch" Incognito — perhaps not Exhibit A for your employee handbook. Meanwhile, Incognito was one of the players on the team's leadership council.
It is important that an employee feel comfortable reporting harassment or bullying to a superior. Strong leadership can promptly address an alleged bullying situation and prevent the problem from getting out of hand. Supervisors also should promote a safe and healthy workplace in which bullying is not tolerated.
3. Define Bullying
Bullying is not limited to physical threats alone. It may include derogatory remarks, such as the racial epithets Incognito left on Martin's phone. Other examples are sabotaging another's work; humiliating an employee in front of others; isolating that person from work meetings or social activities; threatening a co-worker's professional status; and singling out an employee for differential treatment from his or her peers.
4. Be Proactive Rather than Reactive
The best way to deal with workplace bullying and harassment is to stop it before it begins. That sounds easy to say, harder to do. Nonetheless, a vigilant employer can get out in front of issues in the hiring process by being on the lookout for employees who could pose trouble. This may include identifying potential bullies by having more than one person conduct a job interview to gain various perspectives. It also may include conducting background checks to probe for danger signs in a job applicant's past.
In college at Nebraska, Incognito was suspended for not following team rules and was accused of bullying a teammate. A former employer, the St. Louis Rams, released Incognito after he argued with his head coach during a game. The Dolphins signed him anyway. A more traditional employer that hired such an employee could put itself at risk for a negligent hiring lawsuit. Taking a few key steps and enforcing those steps can make a world of difference.
The author, David B. Weisenfeld, is an attorney and Legal Editor at XpertHR. XpertHR will be hosting a free webinar on employer social media policies on November 21, 2013 at 11:00 a.m. EST.