Coming in 2017: Safe Work Environment Act

 The Safe Work Environment Act would provide workers with more protection than the Healthy Workplace Bill, while eliminating legal barriers that people currently face when they file a lawsuit against their employer. Our legislation eliminates the HWB requirement that an employee must prove malice and intent by an employer, which is basically impossible. Our language would also remove the HWB stipulation that an employee must provide proof of damage to their physical / psychological health. The federal employment discrimination law does not include either of the HWB provisions, which provide massive loopholes for abusive employers. We will also incorporate language from the Nevada workplace bullying bill (see below), which eliminates the burden of having to prove workplace bullying based on race or gender discrimination. We also want lawmakers to create a workplace bullying advisory board, which would solicit and implement input from public employees when they recommend future legislation. One bill will not stop workplace bullying, which is a constantly evolving issue. Legislation must evolve with it! The creation of a workplace bullying advisory board will ensure that this issue remains active at the State Capitol EVERY YEAR.
Follow CP on Twitter for state, national and global headlines and updates on the status of our Safe Work Environment Act and Trayvon Martin Act, including action alerts. https://twitter.com/CommunityParty1    Listen to WQTQ 89.9 FM for CP’s public service announcements on our racial justice initiatives. https://www.facebook.com/wqtqfm Contact us at 860-206-8879 or info.community.party@gmail.com.
Resources
Connecticut Valley Hospital workplace bullying survey results:
Connecticut Valley Hospital Racism (includes data obtained through Freedom of Information Act requests):

                                                                               Workplace Bullying Report

This column appears in the February 27 – March 6 edition of the Hartford News… Community Update: The AFSCME Council 4 Workplace Bullying Committee has launched a campaign to get lawmakers at the State Capitol to introduce workplace bullying legislation. Stay tuned for details… Earlier this week I contacted Maribel La Luz, Communications Director for Mayor Pedro Segarra, for an update on the Kennard Ray story. Ray was hired in November as Segarra’s new Deputy Chief of Staff. Ray withdrew his application after sensationalized corporate media reports about his legal history. This totally contradicted the spirit of the city’s Ban the Box ordinance, which is designed to prevent employment discrimination against individuals such as Ray. The Hartford Courant reported  that Segarra’s office issued the following statement, “Sadly, we must accept Mr. Kennard Ray’s withdrawal for the position of Deputy Chief of Staff after learning information that was not initially disclosed. Mr. Ray is a qualified individual with solid references from former supervisors and community leaders. However public servants, especially those in leadership positions, must be held to a higher standard.”
Ray had previously worked as political and legislative director for the Connecticut Working Families Party. Lindsey Farrell, director of the Connecticut Working Families Party, criticized the decision. Farrell said, “(Ray) should be judged on the quality of his work and commitment to the community. I think it’s a bad call on their part.”   I contacted La Luz, who told me that Ray’s legal history had nothing to do with him not getting the job and that Segarra had not asked him to withdraw his application. La Luz also denied media reports that Segarra planned to approach the city council about amending Ban the Box and had implemented his own hiring policy in response to the Ray controversy. Following a City Hall rally in support of Ray, I was told by a source that a city council committee led by councilman Larry Deutsch would meet to discuss Ray’s fate. Via email on Tuesday La Luz said, “The Kennard Ray hiring process is done. There is no further action as far as I know.” Deutsch did not respond to an email I sent  to him seeking comment. I’m totally baffled by what in my opinion are the contradictory statements from the Mayor’s Office and the decision not to hire Ray, who has not commented on Segarra.
This week we’ll share posts from the When the Abuser Goes to Work employment blog. http://abusergoestowork.com/  The Workplace Bullying Institute has introduced various versions of the Healthy Workplace Bill in over 20 states, including Connecticut. The Community Party agrees with workplace bullying activists who believe that HWB in its current form would be ineffective in curbing abusive workplace conduct.

                                                                                            ***

                                         Nevada’s Proposed Anti-Bully Law

 Nevada State Sen. Richard Segerblom has proposed amending a Nevada law 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.
Sen. Segerblom wants to provide individuals who can prove they are the victims of a hostile work environment the right to a remedy under the law whether or not they can show illegal discrimination. In other words, he has proposed making the hostile workplace  remedy status-blind.
 Segerblom’s proposed bill defines “abusive conduct” as:
  • Repeated verbal abuse in the form of derogatory  remarks, insults and epithets;
  •  Verbal or physical conduct which is threatening, intimidating, and humiliating; and
  •  The gratuitous sabotage or undermining of a person’s work product.
Unless the abuse is particularly egregious, abusive conduct must be directed at the employee target on more than one occasion.
It is not difficult for employers to avoid liability under the proposed bill. The bill states that it is an affirmative defense to an action for abusive conduct in a work environment if the employer:
  • Exercised reasonable care to prevent the abusive conduct; and
  •  Promptly corrected the abusive conduct.
If an employer is found to be liable, the employer could be assessed damages, back pay, costs, and attorney’s fees.
Segerblom’s proposed bill provides significantly more protection  to targets of workpladce bullying  than the  Healthy Workplace Bill proposed by the Workplace Bullying Institute.

Original “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.
                                                                                                                  ***
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: