By: Uma Chandrasekaran

You don’t have to be a football fan to have heard about the recent bullying scandal involving the NFL’s Miami Dolphins. On October 28, the Dolphins’ offensive tackle Jonathan Martin left the team amid press reports that he was being bullied by team members.  Less than a week later, the Dolphins announced in a press release that they were suspending left guard Richie Incognito indefinitely for “conduct detrimental to the team” and issued a statement that they had contacted the NFL to investigate allegations of player misconduct.    

Over the last two weeks, information has continued to trickle out in the media regarding the alleged conduct, including a reported voicemail where Incognito allegedly used racial slurs and threatened Martin.  There are allegations that Martin’s teammates also engaged in hazing including name calling and forcing Martin to pay $15,000 for a Las Vegas party he did not attend.    

But, the mudslinging is now all around.  Earlier this week, Incognito gave an interview to one media outlet where he claimed Martin had sent him texts threatening to kill his whole family. Incognito denied bullying Martin and suggested that team members regularly communicated with each other using inappropriate banter.  The ensuing circus has prompted the NFL to appoint a New York-based criminal attorney to direct an independent inquiry into the team’s workplace issues.

The media’s attention to the Dolphins scandal sheds light on the growing concern about workplace bullying.  As we recently blogged HERE, a growing number of states have considered workplace anti-bullying legislation, although to date, no laws have been passed.

Employers can proactively protect themselves against the legal risks of workplace bullying in a number of ways:

Institute Anti-Bullying Policies 

Although employers should already have harassment and non-retaliation policies in place, those policies are typically tied to protected characteristics and conduct in the context of anti-discrimination statutes.  Anti-bully policies could consider a broader range of conduct and can be built into an existing code of conduct.  The policies should define bullying and provide examples of such unacceptable behavior.  Such policies should also communicate a reporting procedure and provide for disciplinary action for violations of the policy.

As Philippe Weiss, head of Seyfarth Shaw at Work, Seyfarth’s subsidiary dedicated to training and compliance services, explained to national media outlets regarding the Dolphins case, “What we see, consulting within competitive environments, is that getting a group (whether that means a bunch of NFL players or a bunch of sales professionals) to successfully rally around a standard and new language of respect is the first critical step.”

 According to one media source, in the Dolphins case, Martin did not formally complain about the workplace harassment and bullying before leaving the team because he feared being retaliated against.  Had Martin felt confident in an internal reporting procedure the scandal and media fall out may have been avoided altogether. 

Provide Regular Workplace Anti-Bullying Training. 

Employers can also incorporate regular anti-bullying training with employees and managers to ensure early detection and prevention.  Training with employees could include examples of inappropriate conduct, avenues available to report bullying and scenarios for discussion.  

Making sure training is dynamic and interactive is essential.  As Weiss explained to media outlets in the Dolphins case,  “In high pressure and sometimes insular environments, old school “respect training,” such as that using videos, power points or dead-boring talking heads, just won’t cut it anymore.  Dynamic communication and real employee, player or team member buy-in are essential – as are memorable respect “hooks” and mantras so that colleagues will respond quickly to check each others’ conduct, before bad patterns emerge.” For example, as Weiss further explained, “Training programs approved (and in some cases, cited for outstanding impact in court filings) by federal agency monitors in consent decree situations also can include bullying modules. Such programs offer a valuable safeguard. Ask your training provider if they offer such programs.”

Provide Support Services.

Employers could also consider instituting programs to provide a support network for employees who may be bullied or targets of bullies to prevent and address this conduct.  These types of programs include coaching, counseling, Employee Assistance Programs and other wellness programs. 

Stay tuned to the Employment Law Lookout for further updates on workplace anti-bullying issues.  If you have questions or need more information, please contact Seyfarth Shaw at Work, the author, Uma Chandrasekaran, or your Seyfarth attorney.