“After a Complaint, the Employer’s Legal Duties to Separate and Protect.”

Question: Dear Alan: I am a school central office administrator who wrote a formal bullying/harassment complaint to the School Board against our Superintendent. As a result, the School Board held a special meeting and unanimously decided to hire an Outside Investigator to investigate my complaint.

I took sick leave for a week after filing the complaint due to stress, but now would like to return to work if possible. However, the School Board did not put the Superintendent on administrative leave while the investigation is being conducted.

So, when I go back to work he will still be in a position to bully me, retaliate against me, and make life miserable for me. He is a serial bully and I either had to live with it or do something. I do not want to put myself in a precarious position where things can get worse.

What is your advice on this matter? Request that the Superintendent be put on leave? Request to work from home? Take medical leave?

I love your website and have learned lots from it. Thanks for your help.

Layton, Utah

Answer: Dear Belinda: The School Board is doing one half of what the law says it must do. It would be wise to remind it of the second half of its legal responsibilities to you:

1. After receiving a complaint of bullying, harassment, discrimination, hostility or the like, an employer has two legal duties: (a) first, to Separate and Protect, and then (b) second, to Investigate. When an employer is in receipt of a complaint about another employee, the law provides that the employer has two legal duties to the person who submitted the complaint. The first duty – and truly the most important of the two – is to separate the parties to protect the complainant from further possible harm by either (a) more bullying or (b) retaliation for having filed the complaint. It cannot simply wait until it is certain of what took place to fulfill its primary duty to you, that is, to protect you.

Just in case you haven’t yet put your complaint into writing, we offer a Model Complaint of Discrimination, Harassment or Hostility you can adapt to your own facts, events and circumstances. “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly! 

2. There are many different ways an employer can fulfill its legal duties to “Separate and Protect.” Here are just a few of the ways an employer can fulfill its duty to “Separate and Protect”: (a) change the duties of one or both of the parties to avoid direct contact; (b) change the location of employment of one or both of the parties to avoid direct contact; (c) change the days and times of employment of one or both of the parties to avoid direct contact; (d) place one or both of the parties on leave of absence to avoid direct contact; (e) require that all communications between the parties be supervised; (f) require that all communications between the parties be in writing; or (g) devise some other means of both “separating and protecting.”

3. It is not the employee’s decision to make, but the employer’s decision to make, regarding which way or ways “separating and protecting” should be accomplished. Because it is the employer’s duty to fulfill, it is the employer’s job to determine which way or ways it should be accomplished. In fact, it is important that the employer make this decision, because if additional abuse by either (a) continuation of the initial bullying, harassment, discrimination or hostility, or (b) retaliation, takes place, it is the employer who will be solely responsible for any damages that ensue.

4. That said, there is nothing wrong with the employee – or his/her physician or therapist – requesting that one or more measures be used to “separate and protect.” You and your physician and/or therapist know you best, and know what you believe would be best to avoid what you refer to as “the precarious position where things could get worse.” First, if you are seeing a physician or therapist to help you deal with this bullying, I suggest that the physician or therapist might be the one to best guide you in this choice.

Any suggestion from you to the School Board on this subject should be (a) in writing, (b) quite respectful, (c) clear in that your suggested measures are suggestions, only, and not demands, and (d) clear in how your suggestions would, in your mind, best accomplish the task at hand: protecting you from further bullying and possible retaliation.

5. Like all important communication regarding workplace issues, your communications with the School Board should be in writing and sent in a “verifiable manner.” As I always say in this context, “Say it with your fingers, not with your lips.” When you communicate by spoken words, exactly what you say, what you didn’t say, and exactly how you said what you said, is not often remembered correctly, or can be mischaracterized, and often a subject of later debate.

However, if you “say” it in writing, and you send it in a “verifiable manner” such as email, UPS or FedEx, then these issues will not likely arise, because you have created a solid “record” or “history” of what was said, by whom, to whom, when and in what way. That memorialization of communication is a critical part of successful navigation and negotiation at work.

I strongly recommend that you write to the School Board, remind its members of their “duties to separate and protect,” and consider suggesting the way or ways you think it would best do just that.

We offer a Model Memo for Requesting Protection from Further Abuse and/or Retaliation after Filing a Complaint. It shows you “What to Say, and How to Say It.” To obtain a copy, just [click here.] Delivered by Email, Instantly

Belinda, your concern is real and your thought about taking a step to address it is both wise and brave. I hope this confirms that you are on the “right track,” and helps you travel down that path. My hat is off to you for having the courage to stand up to a bully boss. Bravo!!

My Best to You,
Al Sklover

P.S.: If things don’t work out, do not despair and do not resign. Instead, consider a “Model Involuntary Resignation.” It shows you “What to Say and How to Say It,™” To obtain a copy just [click here.] “What to Say and How to Say It”™ 24 Hours a Day. Delivered Instantly by Email – Instantly. 

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

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