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Bullying isn't just a playground issue. In an era of declining unionization, job insecurity, and the global profit squeeze, bullying has become a serious workplace problem, even though workplace bullies usually prefer memos, informal disciplinary meetings and grinding criticism to spitballs. Left unchecked, on-the-job abuse adversely affects both employers and employees. Current legal theories, though, are inadequate to address this recent phenomenon.
Drs. Gary and Ruth Namie, the two individuals most responsible for popularizing the term “workplace bullying” in the United States, define it as “the repeated, health-endangering mistreatment of a person (the target) by a cruel perpetrator (the bully).” (Workplace Bullying & Trauma Institute, www.bullyinginstitute.org/def.html.) Bullying behavior can include not only oral abuse such as name calling, but also alienating or isolating an employee, harassing or intimidating an employee (possibly in front of co-workers, clients or customers), or providing an employee with unreasonable or impossible work assignments.
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The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
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