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Bar News - October 15, 2010


Employment Law: Bullying: Dramatic Changes for NH Schools – and the Workplace?

By:


Julie Moore
The New Hampshire legislature first tackled the issue of school bullying when it passed RSA 193-F, the Pupil Safety and Violence Protection Act, effective January 2001. Nine years later, the legislature repealed the entire chapter and, in its place, adopted a much more comprehensive law aimed at training, prevention, investigations, and remediation. So much has changed in less than a decade that the definition of bullying has been substantially overhauled and cyberbullying, for example, is now specifically addressed. Employers should be well advised to pay attention to this new law as well and to -adopt some of the directives in their own harassment and workplace conduct policies.

While "bullying" used to mean verbal or physical insults, taunts, or challenges that were likely to intimidate or provoke a violent or disorderly response, the definition is now much broader. It now states that bullying is one or more incidents – verbal, written, physical or electronic in nature – directed at a student that (1) physically harms the student or the student’s property, (2) causes the student emotional distress, (3) interferes with the student’s educational opportunities, (4) creates a "hostile" educational environment, (5) substantially disrupts the orderly operation of the school, or (6) is motivated by an "imbalance of power" based on a student’s actual or perceived personal characteristics, behaviors or beliefs or a student’s association with another person based on the same.

The "personal characteristics" that the bullying law references extend well beyond the protected characteristics outlined in our discrimination and harassment laws, including Title IX, Title VII, and RSA 354-A. In addition to race, color, religion, sex, national origin, age, disability, pregnancy, veteran’s status, sexual orientation, marital status, and genetics, schools must also pay attention to the following: socioeconomic status, obesity, gender identity and expression, and "other distinguishing personal characteristics."

The addition of cyberbullying to the law is most significant and much needed in today’s age. Cyberbullying is defined as bullying using electronic devices, such as cellular phones, computers, pagers, e-mail, text messages (including SMS and MMS), instant messages (IMs), and websites. Social networking sites, such as MySpace, Facebook, and Twitter, would be included as well. The "traditional" ways of bullying (and harassing) are now giving way, in many instances, to torment and teasing in cyberspace.

Mandates under the statute include:
  • Written Policies: Schools must have in place written policies prohibiting bullying and cyberbullying no later than January 1, 2011. Specific components must be included in the policy, including a process for developing a plan to protect students from retaliation, a statement that false accusations will result in discipline or intervention, a description about how the policy will be disseminated (such as through handbooks, websites, newsletters, and workshops), a written procedure for communicating with parents on remedies and assistance offered by the school, among others. In other words, the policy must be extremely detailed and well-thought-through.
     
  • Training: Schools must conduct training sessions for all school employees, contractors, and volunteers, no later than April 1, 2011, on how to identify, prevent, respond to, and report bullying and cyberbullying. In addition, the training must extend to students and their parents and must be in writing and in age-appropriate language. Training must take place annually.
     
  • Reporting: Several reporting requirements are in place: schools must report bullying complaints to affected parents within forty-eight (48) hours, principals must report all substantiated incidents to the superintendent, school districts must notify the Department of Education of all substantiated incidents, which then prepares a report for submission to the legislature.
Interestingly, the repealed statute required that all school employees and contractors report to the principal any bullying incidents of which they had first-hand knowledge or about which they had reliable information. Schools may elect to add that type of provision to their policies, but it is no longer the law.

Schools and counsel representing them should diligently review and analyze the law, as it completely revamps their obligations when it comes to bullies. With South Hadley teen Phoebe Prince and her alleged bullies in the news, and with national attention focused on the myriad of ways children are picked on in school, strict adherence to the letter and spirit of the law is essential. Simultaneously, schools should be mindful of other forms of misconduct, including sexual harassment, unlawful harassment, and hazing issues, and understand the distinctions and overlap among them.

Private and public employers, as well, should consider the impact that this law has and the attention that is being paid to school bullying. Though workplace bullying is not (yet) regulated or illegal, it is an oft-discussed topic at seminars and in writings. As such, employees, many of whom are parents and have children in school, are well aware that this state, like 43 others across the country, takes bullying seriously. Employees should be familiar with their workplace policies that prohibit sexual and other forms of harassment– and many extend protection to harassment not tied to any protected characteristic.

In light of the bullying law, specific recommendations for employers, including schools when addressing policies for workers, include:

  • Reviewing their anti-harassment policies and ensuring that harassment via electronic devices is included in the definition of harassment and that examples are given. Cell phones, e-mail, text and picture messages, IM, Facebook, Twitter, and the like should be specifically mentioned. Because technology changes so rapidly (Facebook was only founded in 2004 and now has over 500 million users), policies must be written broadly and reviewed regularly.
     
  • Paying attention to complaints that arise from off-premises Internet-based or technology-related messages or communications, but affect the work environment.
     
  • Revisiting their electronics communications policies to ensure that they make sense in light of today’s technology and social media world, and ensuring that privacy expectations, permissible use, monitoring, among other topics, are addressed.
     
  • Being mindful that the bullying statutes reach far beyond the protected categories under employment statutes. Distinguishing personal characteristics, socioeconomic status and gender identity, for example, are not named as protected categories under the laws, and employers need not add them to their policies, absent of their own volition.
Of course, training and education on appropriate workplace conduct and prompt and thorough investigations into complaints have always been advisable and necessary. While not required to train annually, as a matter of best practices, employers should consistently reinforce their commitment to eradicating hostility and harassment in the workplace. Sound internal reporting mechanisms, anti-retaliation provisions, confidentiality, and a commitment to taking corrective or remedial action in the face of complaints with merit are essential as well.

Julie A. Moore is the president of Employment Practices Group, providing employment law and human resources consulting to schools and employers. For more information, visit www.EmploymentPG.com.

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