Much Improved Healthy Workplace Bill

The heretofore anemic  Healthy Workplace Bill (HWB) has received a healthy dose of iron in its latest iteration.

The version of the  HWB submitted for consideration to the Massachusetts’ legislature omits  the controversial aspects  of the earlier HWB - such as a requirement that a target prove “malice” and psychological damage and a  $25,000 cap on damages for targets who were not subjected to demotion or dismissal.

The Workplace Bullying Institute has pushed the HWB, written by Suffolk University Law Professor David C. Yamada,  for more than a decade as part of state-by-state campaign to pass workplace anti-bullying legislation.  More than 20 states have considered the HWB bill but none as yet have adopted it.  This year the bill is under consideration in about a half dozen states.

International scholars criticized the HWB in recent years because it was far less protective of targets of workplace bullying than laws and regulations of other industrialized countries.

This blog criticized the HWB’s  requirements that targets prove malice and psychological damage (the latter was expressly rejected by the U.S. Supreme Court in federal anti-discrimination laws) and the unreasonably low cap on damages.

The proposed  Massachusetts bill,  sponsored by Rep. Ellen Story and Sen. Katherine Clark, is similar to one proposed in recent years  by State Sen. Richard “Tick” Segerblom of Nevada.

Segerblom proposed extending  the umbrella of  discrimination laws to protect any worker who is exposed to a ”hostile work environment.”  Currently, only workers who have protected status under these laws by virtue of their race, sex, national original, etc. are protected.

The Massachusetts bill, which has 37 co-sponsors, states that no employee shall be subjected to an “abusive work environment.”

If an employer or an employee are held to be in violation of the law, the Massachusetts bill  provides  that a court can  order any relief that is “deemed appropriate, including, but not limited to: reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages, and attorney’s fees.”

According to the proposed bill, an abusive workplace environment as one where “an employer or one or more its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both.”

Abusive conduct is involves “acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct … .”  This includes but is not limited to:

• repeated verbal abuse such as the use of derogatory remarks, insults, and epithets;
• verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature;
• or the sabotage or undermining of an employee’s work performance.

The proposed Massachusetts bill continues to distinguish between targets of  bullying who have and have not been subjected to an adverse employment action (i.e., demotion or dismissal).  The cap is gone but the latter still cannot  recover from the employer  damages for  emotional distress or punitive damages unless the “actionable conduct was extreme and outrageous.” This limitation does not apply to “individually named defendants.”

The bill also prohibits retaliation against targets who complain and anyone else who testifies, assists or participates in an investigation of workplace bullying.

The stated purpose of the Massachusetts bill is to provide a “legal incentive for employers” to prevent and respond to abusive treatment of employers at work.

Under the bill, it is  an “aggravating factor” if the abusive conduct exploits an employee’s known psychological or physical illness or disability. In that case, a single act that is “especially severe and egregious” would be actionable.

Employers  can escape liability by showing they exercised “reasonable care to prevent and correct  promptly any actionable behavior; and, the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.”

Also, employers cannot be penalized if the complaint is based on an adverse employment action made for poor performance, misconduct or economic necessity, a reasonable performance evaluation or “an employer’s reasonable investigation about potentially illegal or unethical activity.”

An action under the bill must be taken within a year of  the last act that constitutes the alleged violation.