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Healthy Workplace Bill 2013

This is the latest iteration of the  proposed Healthy Workplace Bill by Suffolk University Prof. David Yamada. Twenty-five (25) states have considered some version of the bill since 2002 but none have adopted it, raising serious questions about the viability of a state-by-state campaign to address workplace bullying in the United States. This effort seems to be delaying any reasonable solution to the problem.  Even if one state  passes the bill, it will likely take decades for others to follow suit and some  “pro-business” states never will.  A better solution is a national approach. In any case, this version of the bill is slightly better than previous versions but it still creates  an unnecessarily high bar for targets. For example, even this revised bill requires targets to prove the bully(s) acted ” with intent to cause pain or distress,”  which not required is  in discrimination lawsuits alleging a hostile work environment unless the target is seeking punitive damages. Furthermore, a target of workplace bullying must prove physical or   “psychological harm.”  The vast majority of bullying cases involve psychological harm. Proof of psychological harm is not required to prove  a hostile workplace case under Title VII of the Civil Rights Act of 1964 and the requirement was  rejected by the U.S. Supreme Court. (Harris v. Forklift System,  510 U.S. 17 (1993)).   These requirements will prevent many if not most bullying victims from ever achieving a remedy under this law. PGB

MASSACHUSETTS HEALTHY WORKPLACE BILL –  2013

Chapter 151G

THE HEALTHY WORKPLACE

Section 1. (a) The General Court finds that:

(1) The social and economic well-being of the Commonwealth is dependent upon healthy and productive employees;

(2) At least a third of all employees will directly experience health-endangering workplace bullying, abuse, and harassment during their working lives, and this form of mistreatment is approximately four times more prevalent than sexual harassment alone;

(3) Workplace bullying, mobbing, and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder;

(4) Abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and increases in medical and workers’ compensation claims;

(5) If mistreated employees who have been subjected to abusive treatment at work cannot establish that the behavior was motivated by race, color, sex, sexual orientation, national origin, or age, they are unlikely to be protected by the law against such mistreatment;

(6) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as that provided for under employment discrimination statutes; and,

(7) Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or to provide adequate relief to employees who have been harmed by abusive work environments.

(b) It is the purpose of this chapter:

(1) To provide legal relief for employees who have been harmed, psychologically, physically, or economically, by deliberate exposure to abusive work environments;

(2) To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.

Section 2. For the purposes of this chapter, the following words and phrases shall have the following meanings:-

“Abusive conduct”, acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct, including, 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. It shall be considered an aggravating factor if the conduct exploited an employee’s known psychological or physical illness or disability. A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard;

“Abusive work environment”, an employment condition when 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;

“Adverse employment action”, an outcome which negatively impacts an employee, including but not limited to: a termination, demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction in compensation.

“Constructive discharge”, an adverse employment action where:

(1) the employee reasonably believed he or she was subjected to an abusive work environment;

(2) the employee resigned because of that conduct; and,

(3) the employer was aware of the abusive conduct prior to the resignation and failed to stop it.

“Psychological harm”, the impairment of a person’s mental health, as established by competent evidence.

“Physical harm”, the impairment of a person’s physical health or bodily integrity, as established by competent evidence.

Section 3. (a) No employee shall be subjected to an abusive work environment.

(b) No employer or employee shall retaliate in any manner against an employee who has opposed any unlawful employment practice under this chapter, or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this chapter, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings, and legal actions.

Section 4. (a) An employer shall be vicariously liable for a violation of section 3 of this chapter committed by its employee.

(b) Where the alleged violation of said section 3 does not include an adverse employment action, it shall be an affirmative defense for an employer only that:

(1) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,

(2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.

Section 5. (a) An employee may be individually liable for a violation of section 3 of this chapter.

(b) It shall be an affirmative defense for an employee only that the employee committed a violation of said section 3 at the direction of the employer, under actual or implied threat of an adverse employment action.

Section 6. It shall be an affirmative defense that:

(a) The complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity; or,

(b) The complaint is based on a reasonable performance evaluation; or,

(c) The complaint is based on an employer’s reasonable investigation about potentially illegal or unethical activity.

Section 7. (a) Where a party is liable for a violation of section 3 of this chapter, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other 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.

(b) Where an employer is liable for a violation of said section 3 that did not include an adverse employment action, emotional distress damages and punitive damages may be awarded only when the actionable conduct was extreme and outrageous. This limitation does not apply to individually named employee defendants.

Section 8. (a) This chapter shall be enforced solely by a private right of action.

(b) An action under this chapter must be commenced no later than one year after the last act that constitutes the alleged violation of section 3 of this chapter.

Section 9. (a) Nothing in this chapter shall supersede rights and obligations provided under collective bargaining laws and regulations.

(b) The remedies provided in this chapter shall be in addition to any remedies provided under any other law, and nothing in this chapter shall relieve any person from any liability, duty, penalty or punishment provided by any other law, except that if an employee receives workers’ compensation for medical costs for the same injury or illness pursuant to both this chapter and the workers’ compensation law, or compensation under both this chapter and that law in cash payments for the same period of time not working as a result of the compensable injury or illness or the unlawful employment practice, the payments of worke

Another Defeat for Healthy Workplace Bill

TIME FOR A NEW APPROACH

The decade-long strategy of adopting state-by-state legislation to deal with workplace bullying in the United States has suffered yet another defeat.

The Maine House of Representatives recently voted 87-56 to sustain Maine Gov. Paul LePage’s veto of a bill aimed at bullying in the workplace that had been adopted by Maine’s legislature.

 The bill, which was supported by the Workplace Bullying Institute (WBI), directed the Maine Workers’ Compensation Board to study psychological and physical harm employees suffer due to abusive work environments. 

 In his veto message, the governor said the study was unnecessary because the Workers’ Compensation Board already provides benefits to employees who suffer physical and psychological injuries on the job.

 Maine was the 24th state to consider some version of the WBI’s proposed  Healthy Workplace Bill  but no state has yet to adopt it.

 This blog advocates a federal and national solution to the problem of workplace bullying, which affects one in every three or four workers in the United States. So far about 8,000 targets of workplace bullying have signed a petition demanding action from the Obama Administration.

 Ruth and Gary Namie, founders of the WBI, have led  a decade-long campaign to pass proposed legislation called The Healthy Workplace Bill.

 Drafted by Suffolk University Law Professor David Yamada, the bill was overhauled earlier this year after criticism by workplace anti-bully advocates that it offered far less protection to targets of workplace bullying than similar legislation in other countries.  

The Namies, who aggressively market consulting services and book sales on the WBI web site,  and Mr. Yamada, who formed an organization called The New Workplace Institute, have not cooperated with other workplace anti-bully advocates who formed a coalition last year (Protect US Workers) to  support a federal solution to workplace bullying.

America lags far behind Europe, Canada, Australia and many other industrialized countries in protecting workers from bullying, which is widely considered to be a health-harming form of workplace violence..

 

Somewhat Improved Healthy Workplace Bill

… But Still Needs Work

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

The version of the  HWB subpumping ironmitted for consideration to the Massachusetts’ legislature omits  the  $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 since  2002 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 revised bill still defines an abusive work environment as one where “an employer or one or more of 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.”

How would one go about providing that a  bully acted “with intent to cause pain  or distress?”  I have no idea. Suggestions?

In addition,  workplace bullying almost always involves psychological harm. The bill’s requirement to prove psychological harm penalizes poor people and members of minority groups who tend to visit mental health professionals far less frequently for monetary or cultural reasons.  In addition, this approach was explicitly rejected by the U.S. Supreme Court as a requirement in race and sex  discrimination cases involving a hostile workplace . (Harris v. Forklift System510 U.S. 17 (1993)).

The proposed  Massachusetts bill,  sponsored by Rep. Ellen Story and Sen. Katherine Clark.

A far better alternative to the problem of workplace bullying has been proposed 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.

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 is 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 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.”  Thus, an employee who did not suffer an adverse employment action can only seek monetary damages from bully unless the actionable conduct was extreme and outrageous.

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.”

The bill would require an employee to  file an action within a year of  the last act that constitutes the alleged violation.

First “Healthy Workplace Bill”

SkinnyThis is the original  proposed Healthy Workplace Bill (HWB)  that was drafted by the Professor David C. Yamada of  Suffolk University Law School in Boston, MA, and supported by the Workplace Bullying Institute for almost a decade  at a web site called, The Healthy Workplace Bill.  

A new and much better version of the bill was introduced for consideration by  the Massachusetts legislature in 2013. 

Any state that is considering workplace anti-bully legislation should look to Massachusetts or to Nevada, where Nevada State Senator Richard “Tick” Segerblom  proposed a bill that would give workplace bully targets the same protection and rights as any other victim of a hostile work environment. Nevada’s bill was patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, which prohibits employment discrimination based on race, color, religion, sex, and national origin and would essentially provide a status-blind remedy for a hostile work environment.

The original HWB is anemic when compared to  legislation  and regulations adopted in other countries  to address workplace bullying.

For one thing, it  would require a victim to provide evidence of malicious intent to bully.  Malice is defined in the proposed bill as “the desire to cause pain, injury, or distress to another.”  Part of the “art” of  workplace bullying is subtlety. The target may be the victim of a thousand pin pricks that add up to a mortal wound.  Bullies are notorious for showing one face to the target and another to his/her supervisor. It would be very difficult to prove malice in these situations, and this is not a requirement for “hostile workplace” claims under federal discrimination laws unless the plaintiff is seeking the additional remedy of punitive damages. 

It also would require the target to provide proof of tangible  psychological or physical harm to the plaintiff.  This is not required for other victims of a hostile workplace environment.  In fact, the requirement was expressly rejected by the U.S. Supreme Court in a 1993 sexual harassment case.

The U. S. Supreme Court said in 1993 that the protection of federal law “comes into play before the harassing conduct leads to a nervous breakdown.”  The Court also said:  “Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive … there is no need for it also to be psychologically injurious.” (Harris v. Forklift System,  510 U.S. 17 (1993)).

Any requirement to prove psychological harm would pose a burden for targets who don’t have health care coverage,  the funds to see a therapist or the cultural disposition to seek psychiatric care. According to the Office of Minority Health, U.S. Dept. of Health and Human Services, 19.5 percent of African-Americans in comparison to 10.4 percent of non-Hispanic whites were uninsured in 2007.  

An international authority on workplace abuse, Katherine Lippel, says laws in other countries do not have the above restrictions, which would make it far more difficult for a plaintiff  in to prevail in litigation. She says the authors should rethink the bill. Dr. Lippel is the Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada. 

According to Dr. Lippel:  “It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill … The actual content of the legislation on workplace bullying, if there is to be legislation, requires reflection.”

Perhaps most troubling about the HWB is the wording of Section 7(b), which limits damages for emotional distress to $25,000 (with no punitive damages)  in  cases where an employer is found to be liable but the target does not suffer an adverse employment action. This  affects targets of bullying who are not demoted or fired. But why?  There is at least one highly publicized case where an alleged target of workplace bullying committed suicide because he thought that he was  going to be demoted or fired. This cap is so low that it would  fail to adequately compensate a target of severe bullying and would not serve as a useful deterrent to employers to halt workplace bullying.

Possibly the above limiting language  reflects a concern by its drafter that employers will fight workplace anti-bullying legislation unless it is sufficiently weak. That hardly seems like a suitable foundation for a bill to address a problem as serious as workplace bullying.

WBI Director Gary Namie and Prof. Yamada declined to comment when asked to explain the reasons for the restrictive provisions of the bill.

 American workers deserve at least the same level of protection as other workers around the world.  The original HWB would leave many targets of workplace bullying with no legal recourse. Advocates should begin from a starting point that all workers have a right to be treated with dignity and respect.

– PGB

_______________

THE HEALTHY WORKPLACE BILL

Section 1 – Preamble

(a) Findings

The Legislature finds that:

(1) The social and economic well-being of the State is dependent upon healthy and productive employees;

(2) Between 37 and 59 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment alone;

(3) Workplace bullying, mobbing, and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder.

(4) Abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and increases in medical and workers’ compensation claims;

(5) If mistreated employees who have been subjected to abusive treatment at work cannot establish that the behavior was motivated by race, color, sex, sexual orientation, national origin, or age, they are unlikely to be protected by the law against such mistreatment;

(6) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as that provided for under employment discrimination statutes;

and,

(7) Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or to provide adequate relief to employees who have been harmed by abusive work environments.

(b) Purpose

It is the purpose of this Chapter:

(1) To provide legal relief for employees who have been harmed, psychologically, physically, or economically, by being deliberately subjected to abusive work environments;  (2) To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.

Section 2 – Definitions

(a) Abusive work environment. An abusive work environment exists when the defendant, acting with malice, subjects an employee to abusive conduct so severe that it causes tangible harm to the employee.

(1) Abusive conduct. Abusive conduct is conduct, including acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant’s conduct. Abusive conduct may include, but is not limited to: repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee’s work performance; or attempts to exploit a employee’s known psychological or physical vulnerability. A single act normally will not constitute abusive conduct, but an especially severe and egregious act may meet this standard.

(2) Malice. Malice is defined as the desire to cause pain, injury, or distress to another.

(b) Tangible harm. Tangible harm is defined as psychological harm or physical harm.

(1) Psychological harm. Psychological harm is the material impairment of a person’s mental health, as established by competent evidence.

(2) Physical harm. Physical harm is the material impairment of a person’s physical health or bodily integrity, as established by competent evidence.

(c) Adverse employment action. An adverse employment action includes, but is not limited to, a termination, demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction in compensation.

(d) Constructive discharge. A constructive discharge shall be considered a termination, and, therefore, an adverse employment action within the meaning of this Chapter. A constructive discharge exists where: (1) the employee reasonably believed he or she was subjected to abusive conduct; (2) the employee resigned because of that abusive conduct; and, (3) prior to resigning, the  employee brought to the employer’s attention the existence of the abusive conduct and the employer failed to take reasonable steps to correct the situation.

Section 3 – Unlawful Employment Practices

(a) Abusive Work Environment. It shall be an unlawful employment practice under this Chapter to subject an employee to an abusive work environment as defined by this Chapter.

(b) Retaliation. It shall be an unlawful employment practice under this Chapter to retaliate inany manner against an employee who has opposed any unlawful employment practice under this Chapter, or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this Chapter, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings, and legal actions.

Section 4 – Employer Liability and Defense

(a) An employer shall be vicariously liable for an unlawful employment practice, as defined by this Chapter, committed by its employee.

(b) Where the alleged unlawful employment practice does not include an adverse employment action, it shall be an affirmative defense for an employer only that:

(1) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,

(2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.

Section 5 – Employee Liability and Defense

(a) An employee may be individually liable for an unlawful employment practice as defined by this Chapter.

(b) It shall be an affirmative defense for an employee only that the employee committed an unlawful employment practice as defined in this Chapter at the direction of the employer, under threat of an adverse employment action.

Section 6 – Affirmative Defenses

It shall be an affirmative defense that:

(a) The complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity;

(b) The complaint is based on a reasonable performance evaluation; or,

(c) The complaint is based on a defendant’s reasonable investigation about potentially illegal or unethical activity.

Section 7 – Relief

(a) Relief generally. Where a defendant has been found to have committed an unlawful employment practice under this Chapter, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other 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 emotional distress, punitive damages, and attorney’s fees.

(b) Employer liability. Where an employer has been found to have committed an unlawful employment practice under this Chapter that did not culminate in an adverse employment action, its liability for damages for emotional distress shall not exceed $25,000, and it shall not be subject to punitive damages. This provision does not apply to individually named employee defendants.

Section 8 – Procedures

(a) Private right of action. This Chapter shall be enforced solely by a private right of action.

(b) Time limitations. An action commenced under this Chapter must be commenced no later than one year after the last act that constitutes the alleged unlawful employment practice.

Section 9 – Effect on Other Legal Relationships

The remedies provided for in this Chapter shall be in addition to any remedies provided under any other law, and nothing in this Chapter shall relieve any person from any liability, duty, penalty or punishment provided by any other law, except that if an employee receives workers’ compensation for medical costs for the same injury or illness pursuant to both this Chapter and the workers’ compensation law, or compensation under both this Chapter and that law in cash payments for the same period of time not working as a result of the compensable injury or illness or the unlawful employment practice, the payments of workers’ compensation shall be reimbursed from compensation paid under this Chapter.