Workplace Investigations and NFL Bullying
Nov. 8, 2013
Workplace Investigations and NFL Bullying
A Comparison Between Richie Incognito’s Bullying Allegations and A Normal Employment Scenario
The NFL is a different sort of employer, to be sure, but the NFL’s attorneys, investigators, and HR consultants are probably engaging the same type of analysis that many employers engage in when workplace bullying occurs. The initial analysis is that the employer has a broad duty to keep employees safe. This duty of safety stems from OSHA and many other laws and rules. I do not personally know the facts of the Dolphin’s bullying case so my commentary is necessarily stemming from the media. I do think it is interesting to ponder the similarities between a typical workplace bullying investigation and an investigation conducted by the NFL.
The investigators looking into matter involving Richie Incognito allegedly bullying Jonathan Martin, both of the Dolphins, are probably considering the following:
Motivation for Bullying
Lets just say it, Jonathan Martin is not “weak.” He is an NFL player and has been a dedicated and stoic worker since the pee-wee league. Besides, there is nothing about a single victim that can tell us much about the motivation of a bulling perpetrator. There is plenty of work produced by the social sciences explaining why people bully. Finding the reason Mr. Incognito is known as a bully even outside Mr. Martin’s case may help investigators with interview and investigative techniques. It is likely the investigators will also conduct a background investigation on Mr. Incognito, if the League hasn’t already. These backgrounds can provide information indicating the investigators level of personal physical risk, glimpses of motivation leading to questioning techniques, and elements of fact that investigators can use to check Mr. Incognito’s propensity for truth during an interview. From an employment perspective, unless it is true that he was ordered by his employer to engage in bullying, the motivation of the bully is rarely relevant to the employment setting except as a key to investigative techniques.
There is much adoo about the culture of bullying in the NFL…or the Military…or the local beauty shop. Bullying is a complete waste of an employer’s payroll and leave budgets but it is, in fact, a norm in many workplace environments. Investigators will need to quantify and compare the culture of bullying to the exchanges between Martin and Incognito. If, for example, it is normal to leave epitaph-laden voicemails for other players, investigators will need to consider whether Mr. Martin was particularly sensitive to the culture or if this is truly a targeted aggression. Maybe Mr. Incognito was reasonable to believe that it was acceptable to leave epithet-laden voicemails because it happened so often without consequence throughout the Dolphins and the NFL. Generally speaking, it is not illegal or even contrary to a bargained agreement to have a bad culture. The actual incident Mr. Incognito engaged in may, however, have violated a law or agreement. From that point, the organization will need to analyze the way it will handle the enforcement of a rule that it has not previously enforced.
Bullying can be illegal harassment if a supervisor does the deed. The definition of supervisor in a harassment or discrimination situation is a fairly complicated matter. Courts seem to change the rules on this monthly. That being said, the cat’s paw theory of supervisor harassment has been consistently enforced. Under the cat’s paw theory, a supervisor instructs an employee to act out elements of harassment, presumably so the supervisor won’t be caught. In the Incognito case, it may be that Dolphin’s coaches were using Mr. Incognito as the dolphin’s flipper to act out bullying, or harassment, against Mr. Martian. If it is accurate that Mr. Incognito was a mere dolphin’s flipper the Dolphins may have some legal consequences, as any employer would.
In addition to all the other considerations, the NFL investigators need to determine if the elements of other crimes have been committed. In bullying cases other crimes can be committed such as: assault, battery, intentional infliction of emotional distress, intentional interference with an employment relationship, harassment, or discrimination laws. Not all of those laws would make the employer liable for the bullying but it can be guaranteed that no employer wants to expend the time or the money proving they are not liable for crimes committed in their workplace.
In the Dolphin’s case, the union is conducting the investigation. That is not a typical scenario for employers. For an employer that is a bit more normal than the NFL, a union presence presents an additional set of requirement. There is some case law, such as Weingarten, that imposes additional rules for investigators but the rules of a union are very often particular to the agreement of that particular workplace. These bargained for union rules are not a substitution for laws but generally set an additional agreed upon set of standards for an employer and employees to follow.
Regardless of any and all of these considerations, I suspect the NFL will use this as an example to correct all sorts of behaviors that occur in the NFL. As the Incognito incident shows bullying is risky, expensive, and drama-filled nonsense that should be disallowed by the NFL and employers alike.