For Businesses, Bully Lawsuits May Pose New Threat

Who's afraid of the big, bad boss?

A significant number of U.S. workers say they are— and soon those in New York may be able to sue their employers, including small businesses, for any suffering they experience at the hands of a toxic boss or other workplace bully.

Earlier this month, the Empire State's Senate passed a bipartisan measure that would allow workers who've been physically, psychologically or economically abused while on the job to file charges against their employers in civil court. The bill applies to organizations of all sizes, unlike other employee-friendly laws that exempt small businesses, such as the federal government's Family and Medical Leave Act. It also holds employers responsible for the bullying of workers by colleagues and not just supervisors.

Scott Zeier

Employees at Road Science LLC, which has a policy against jerks.

Journal Community

• Vote: Have you experienced workplace bullying?
• Vote: Should employees be able to sue employers for suffering at the hands of a workplace bully or toxic boss?

In addition to New York, 16 other states have introduced legislation in recent years aimed at curbing workplace bullying, but none have become law. New York's passage by the state's Senate is considered significant because the issue is generally deemed a liberal cause; the state's Senate is made up of a slight Democratic majority and one of the bill's two leading sponsors is Republican. The bill next moves to a vote by the labor committee of the state's Democratic-majority Assembly at a to-be-determined date.

Business owners nationwide should take note, as a chain reaction is likely to ensue if the measure becomes law, says Jennifer Rubin, a partner in the employment-law practice at New York law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. "It's only a matter of time before this trends to other states," she says. "It's politically popular."

New York's anti-bullying bill defines bullying broadly and includes the repeated use of derogatory remarks, insults and epithets, as well as conduct that a "reasonable person" would find threatening, intimidating or humiliating.

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Mathew Tully, founding partner of Tully Rinckey PLLC in Albany, N.Y., says he's concerned that his 77-employee law firm could get sued as a result of the bill because it operates within a high-pressure environment. "Generally, our employees are acting in a professional manner, but every so often there may be a burst of anger," he says.

On the flip side, Mr. Tully figures that his firm would likely see an increase in demand for its legal services if the bill were to become law, as he's already heard from more than a dozen clients seeking advice on how to avoid litigation. "It's going to drum up a lot of business for us," he says. "This is almost guaranteed to flood the courts."

Road Science LLC, a Tulsa, Okla., technology company with 110 workers, pledges in its employee handbook to maintain a "jerk-free" culture. Anti-bullying bills were proposed—but never passed—in Oklahoma in 2004, 2007 and 2009. Frank Panzer, Road Science's chief executive, says he opposes such legislation because it could prompt false claims from workers. "The danger is you create a victim mentality," he says. "Just because you're being disciplined doesn't mean someone's bullying you. A lot of (managers) are just very forthright. If they feel it, they say it. They don't have much tact."

According to New York lawmakers, between 16% and 21% of employees have experienced health-endangering workplace bullying, abuse and harassment, and such behavior is four times more prevalent than sexual harassment.

The problem is just as common in small businesses as large ones, says Wayne A. Hochwarter, a management professor at Florida State University's College of Business, who surveyed 980 workers in March and April on the topic. One third of respondents said they work for companies with about 100 employees or less, and of those, 23.5% reported experiencing supervisor bullying on a weekly basis, compared with 21.3% of the other two-thirds of respondents who said they work for larger organizations.

To be sure, New York's anti-bullying legislation says that employers may not be held liable if they take steps to prevent or promptly correct abusive behavior. Small-business owners should therefore be sure to have a policy that prohibits bullying by both supervisors and colleagues, says Rick Gibbs, a senior human-resources specialist for Administaff Inc., a Kingwood, Texas, human-resources-outsourcing firm. Owners should also create ways for employees to notify them about instances of abuse, such as by installing an anonymous hotline.

Mark Mahan

Suzanne Miller once worked for a toxic boss.

Of course, it can also be helpful to try and avoid hiring workers who might be perceived as bullies in the first place. Suzanne Miller, owner of SPM Communications LP, a public-relations company in Dallas with 18 employees, says she asks candidates about their experiences working with others to get a sense of whether they might have abusive tendencies. "If you take the time to get to know a person and what motivates them in business and in life, you're going to find that you choose the right people," she says.

Ms. Miller says she's glad the New York legislation recognizes bullying as unhealthy. Part of what motivated her to become an entrepreneur in 1999 was a prior three-year stint working for a toxic boss. "She would scream at me before she would check the facts," says Ms. Miller of her former employer. "I felt belittled for no apparent reason."

Business owners should also consider the possibility that they might actually be bullies. One telltale sign: A high turnover rate, says Gary Namie, co-founder of the Workplace Bullying Institute, an employee-rights group in Bellingham, Wash. "You're creating a place that reasonable people don't want to stay in," he says. "You've probably focused on whatever it is you make or sell and don't have an incentive to get management skills."

Another indicator of a bully business owner is if he or she takes all the credit for their company's success, says Vicky Oliver, author of "Bad Bosses, Crazy Coworkers & Other Office Idiots." "If everything is your idea," she says, "it's probably because you're bullying the people who work for you into submission."

Write to Sarah E. Needleman at sarah.needleman@wsj.com

Convicted by Text Message - Overcoming Authentication and Hearsay Objections

A wife was convicted of simple assault on her husband. Text messages were used in her conviction to show her state of mind. The Defendant appealed her conviction, claiming the text messages from her phone, the victim’s phone and a photo exhibit of a text message were improperly admitted on foundational and hearsay grounds. State v. Thompson, 2010 ND 10, P1 (N.D. 2010).

The Supreme Court of North Dakota did not agree with her.

The Facts: An SMS State of Mind of Assault

Halloween 2008: the Defendant “texted” her husband for money to buy their children Halloween costumes. Thompson,at *P3. One text message sent at 8:20 am contained threatening and profane language. Id.

After the husband and wife drove the children to school, the Defendant demanded money and refused to get out of the victim’s car. The victim had to drive to the police department for the Defendant to be removed from the car. Thompson, at *P3.

Police were called to the Defendant’s house after 11:00 pm that night, finding the victim nursing an injured eye and several blows to the face and back. The husband was hit several times by the wife in a fight over money. Thompson, at *P3.

The wife was arrested and convicted for assault.

Motion in Limine to Exclude Text Messages

The Defendant brought a motion in limine to exclude any testimony or evidence of the text messages. Thompson, at *P6. The Defendant claimed the texts were not relevant and inadmissible. Thompson, at *P9.

Text Messages at Trial

The victim testified at trial about a threatening and profane text message sent the morning of the day he was attacked by the Defendant. Thompson, at *P7. The State offered a photo of the text message as a trial exhibit. Id.

The Defendant claimed the victim could have sent himself the threatening text from the Defendant’s phone. Thompson, at *P7.

Text Messages State of Mind

The trial court allowed the text messages at trial to show the Defendant’s state of mind the day of the attack. Thompson, at *P11.

Defendant’s Arguments

The Defendant claimed the State failed to authenticate the text messages.

The Defendant argued that “text messages are inherently unreliable because of their relative anonymity and can rarely be connected, to a certainty, with a specific author.” Thompson, at *P12.

Direct Examination of Victim

The husband stated on direct examination that the text messages were from the Defendant. The victim explained that he stored his wife’s phone number as “Fr: Jen.” Each text message began with the Defendant’s stored phone number in the victim’s phone. The text messages were all “signed” with the Defendant’s signature “cuzImJenIcan.” Thompson, at *P16.

The Defendant challenged the admission of the text messages at trial as hearsay. Thompson, at *P16. The trial court ruled the text messages were “a declaration against interest and therefore not subject to [the] hearsay rule.” Thompson, at *P16.

Rules of Authentication

Authentication is a “condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Thompson, at *P21.

Pursuant to the Federal Rules of Evidence (which in this case mirrored the state rules), the party offering the evidence “must provide proof sufficient for a reasonable juror to find the evidence is what it purports to be. Thompson, at *P21, citing United States v. Hyles,479 F.3d 958, 968-69 (8th Cir. 2007).

Authentication of Electronically Stored Information

The Supreme Court of North Dakota had not addressed text message authentication before and examined other case law where electronically stored information had been authenticated. Thompson, at *P24. In all of the cases the Supreme Court of North Dakota discussed, circumstantial evidence was used to authenticate electronically stored information. Thompson, at *P24.

Authentication examples summarized by the Supreme Court of North Dakota included:

E-mails properly authenticated when they included defendant’s e-mail address, the reply function automatically dialed defendant’s e-mail address as sender, messages contained factual details known to defendant, messages included defendant’s nickname, and messages were followed with phone conversations on same topic.

United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000)

Foundational requirement for chat room conversation established when defendant admitted he used screen name “Cessna” when he participated in recorded conversations, several co-conspirators testified he used that name, and defendant showed up at meeting arranged with person using screen name “Cessna.”

United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000)

Threatening text messages received by victim on cell phone were properly authenticated when circumstantial evidence provided adequate proof message was sent by defendant.

Dickens v. State, 927 A.2d 32, 36-38 (Md. Ct. Spec. App. 2007)

Text messages properly authenticated when telephone employees testified about logistics for text messages and about how particular text messages were stored and received and messages contained sufficient circumstantial evidence the victim was the person who sent and received the messages.

State v. Taylor, 632 S.E.2d 218, 230-31 (N.C. Ct. App. 2006)

Instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances.

In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005)

All cases quoted from Thompson, at *P24.

Text Message Authentication

The Supreme Court of North Dakota held that the authentication of the text messages were proper. The trial court was presented evidence from the victim of his knowledge of the Defendant’s cell phone number and her signature on text messages. This evidence was sufficient under the Evidence Code to authenticate the text messages. Thompson, at *P26.

Hearsay Challenge

The Supreme Court of North Dakota curtly dealt with the hearsay challenge: A party’s own statements are not hearsay. Thompson, at *P31.

The Unreliable Text Message Argument

The Supreme Court of North Dakota quickly shot down the arguments that a text message was “unreliable” and could have been sent by the victim. Thompson, at *P25-26.

The Court, echoing a Pennsylvania Superior Court that addressed the authentication of instant messages, rejected the “argument that electronic messages are inherently unreliable because of the messages’ relative anonymity.” Thompson,at *P25.

As noted in by the Pennsylvania court in In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005), paper documents can also be subject to forgery or signature letterhead stolen and used by another. Id. As the F.P. court stated:

We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa. R.E. 901 and Pennsylvania case law. We see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.

Thompson, at *P25, citing In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005).

The Supreme Court found no error in the trial court’s finding of the victim’s authentication of the text messages and rejected the argument the text messages were “unreliable.” Thompson, at *P26.

Bow Tie Thoughts

State v. Thompson is a thoughtful opinion on the rules of Evidence and authenticating text messages. The one area that could have been worth exploring was how the text messages were collected.

One of the trial exhibits was a photo of the text message. Thompson,at *P7. This certainly is a powerful trial exhibit to show the Defendant’s phone number, the text message and signature line.

However, was the photo the sole means of preserving the text message? It is possible the investigating officers just took photos to preserve the evidence after the incident.

I encourage parties to defensibly preserve relevant electronically stored information using a product like Paraben when dealing with something as transitory as a text message on a cell phone. Alternatively, if the phone is no longer physically available, the cell phone text message history can also be requested from some service provider (this would depend on whether the service provider was retaining any of the text message history). While taking a photo of a text message has been done before, it is good for attorneys to realize the different methods of collection and preservation at their disposal.

This entry was posted on Wednesday, May 12th, 2010 at 3:50 pm and is filed under Admissibility, Electronically Stored Information, Text Messages,e-Discovery. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.