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A Union-Backed Bill Would Tackle New York Workplace Bullying

Proposed legislation that has garnered support from a public employees union would provide greater protection to state workers who file complaints of bullying, which is mostly not illegal in the state.

New York Gov. Kathy Hochul has promised to root out workplace bullying in state government.

Her administration is declining to take a position, however, on union-backed legislation that would provide greater protection to state workers who lodge bullying complaints.

As The Buffalo News reported Sunday, a longtime close friend of the governor, Joan Kesner, was the subject of three complaints filed by administration colleagues last year, each alleging Kesner created a toxic work environment. Two of the three alleged Kesner had engaged in bullying, but did not allege discrimination.

Such complainants currently have few formal protections in state law.

In New York, when bullying is alleged to be based on age, race, sexual orientation, gender, disability or other "protected" statuses, it may be illegal, and the basis for legal action. New York law also protects people who file complaints alleging discrimination from retaliation.

Complaints alleging workplace bullying — but not that the bullying was based on discrimination — carry far less legal weight: Bullying by itself is generally not illegal in New York workplaces, including state government.

"There is no law in general prohibiting people from being mean, nasty, demeaning, et cetera, unless there is a 'protected' category involved," said Ronald Dunn, a prominent employment lawyer at the Albany-based firm Gleason Dunn.

Dunn was also not aware of any law barring retaliation against a state employee who reports bullying but not discrimination.

The Public Employees Federation, a union representing 50,000 white-collar state workers, is campaigning to pass Albany legislation defining actions constituting "bullying" and "abusive conduct" in state agencies for the first time.

The bill would create a process for reporting and investigating complaints, require a response by an agency's human resources office within two weeks, and allow disciplinary action based on agency policies and collective bargaining agreements.

The bill requires the employer to ensure complainants are not subject to retaliation, and creates new training requirements based on the updated definitions.

Notably, the bill would not make state workplace bullying — when it is not based on discrimination — a legal violation that would be the basis of a lawsuit.

The bill has gained some traction in the Democratic-controlled Legislature, passing the Assembly this year, but not the Senate. According to PEF President Wayne Spence, a major variable remains: The position of Hochul's office, which has declined to weigh in.

"Governor Hochul will carefully review all legislation that passes both the Senate and Assembly," Hochul's spokesman, Avi Small, told The News. "We will not comment on pending legislation.

Though bullying by itself is not illegal, such allegations sometimes do bring consequences. Over decades, Dunn has represented high-level state agency clients — including in the Executive Chamber — who were not found to have engaged in illegal acts. But they were still punished for offenses such as allegedly creating a toxic workplace, he said.

"The way the cases ultimately pan out is they leave, or they're asked to leave, or they're kind of like edged out, but it's not because there was a legally substantiated complaint. There might be a substantiated complaint, it just has nothing to do with law. It has everything to do with, 'That's not the kind of workplace we want to have,'" Dunn said.

Dunn does not always consider such punishment to be fair. He said there are instances where subordinates in government fail to do their jobs, and for self-protection, lodge toxic workplace allegations against supervisors.

After Hochul became governor, her administration retained an outside law firm to independently investigate discrimination-based complaints within the governor's office. It was a response to how top internal staff of her predecessor, Gov. Andrew Cuomo, allegedly mishandled sexual harassment complaints against the governor, who ultimately resigned while facing likely impeachment over the claims.

Still, under Hochul, workplace complaints such as bullying, which do not allege discrimination, remain investigated by an internal staff in the Hochul administration.

In response to the two complaints against Kesner that did not allege discrimination, Hochul's new human relations staff allegedly never interviewed witnesses provided by one complainant; kept that complainant in the dark for months about the outcome of his case; and never asked Kesner about the second complaint at all, nor whether she had ever yelled at her subordinates

After speaking to Hochul's human relations office over the phone, Kesner said the matter was "dropped." She denies the allegations made in the complaints that she created a toxic work environment. Hochul's office said "multiple witnesses" were interviewed in the Kesner matter and the investigation was "thorough."

In an interview, Spence said he was irritated when Hochul hired the outside law firm to investigate "protected class" complaints in the Executive Chamber. He questioned why that option is not available at other state agencies, which, unlike politically appointed Chamber workers, are unionized.

Small, Hochul's spokesman, said that the governor's office retained outside counsel for the Executive Chamber "due to the unique circumstances of the office culture in the Executive Chamber under her predecessor."

Spence said that Hochul's Director of State Operations, Kathryn Garcia, will at least return Spence's phone calls about alleged incidents of workplace bullying in agencies. That is a shift from the unresponsiveness of top Cuomo staff, Spence said.

Garcia only sometimes sides with Spence's rank-and-file members over a supervisor; Spence said he's had more success appealing directly to the governor.

Still, Spence believes deeper problems are being left unaddressed concerning bullying by mid-level managers at state agencies.

"No one will hold them accountable," Spence said. "I'm trying to get (the governor) to understand that I can't see everything, and she shouldn't keep expecting me to elevate things to her level. She should be proactive. I mean, she got into this job — she became governor — because of toxicity that was revealed by courageous women."

(c)2023 The Buffalo News (Buffalo, N.Y.) Distributed by Tribune Content Agency, LLC.
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