Maybe someone should fire his ass?

August 9, 2011 by Leave a Comment

Workplace bullying is not always confined to the office in the age of technology.

A worker for the state of Nevada believes she was the victim of bullying by a supervisor writing on his Facebook page because she took time off under the Family and Medical Leave Act.

According to the Las Vegas Sun:

Steven Zuelke, a unit manager for the state’s unemployment benefits anti-fraud unit, used his personal Facebook page to complain about an unidentified employee he thinks uses too much sick time.

 “Why is it that for some people FMLA stands for Family Medical Leave Act and for others, it should stand for Fire My Lazy Ass?” Zuelke wrote on his Facebook page last month, hours after one of his employees left work early because she said she was sick.

Zuelke engaged in a lengthy back-and-forth with a group of his Facebook friends — including another state staffer who works in the same division — in which he initially mocks his employee and then rants about how difficult it is for the state bureaucracy to deal with problem workers.

The rant was specific enough that one of the two employees Zuelke has had on FMLA status thinks Zuelke was talking about her.

“I had to read it a few times because I was shocked and confused,” said Sherry Truell, a claims examiner who works in Zuelke’s unit and has used FMLA time extensively this year. “I was being referred to as lazy, an anchor, that other people have to do my work, stuff that related to my personal business … I was extremely embarrassed. My co-workers can see this information.”

 Truell said she used FMLA heavily last month because of what she described as a stress-related medical condition and because her son needed surgery. She added that she usually takes two or three days off a month.

Truell has sought the help of her union representative to address the issue and is considering filing a grievance.

“He’s discussing his employees, his work environment, he has friended multiple other employees in the same office. … There are so many problems with this,” said Priscilla Maloney, labor representative for Truell’s American Federation of State, County and Municipal Employees local.

Instead of offering an apology, Zuelke alludes to his First Amendment’s right to free speech.  He says he did not post during working hours or using a state computer.

Nevada doesn’t have a specific written policy on Facebook use, which could end up costing the state.

If an employee takes legally appropriate medical leave, it is not acceptable for a manager to penalize, demean or harass her. In fact, it is never acceptable for a supervisor to publicly demean and harass an employee.  Most importantly for his employer, however, Zuelke’s actions subject the state of Nevada to potential legal liability.

The FMLA provides that eligible employees of covered employers have a right to take job-protected leave for qualifying events without interference or restraint from their employers. The FMLA also gives employees the right to file a complaint with the U.S. Department of Labor’s Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), and to testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.

If  Zuelke”s  subordinate at the Nevada Employment, Training and Rehabilitation Department actually did take FMLA time, the state may find itself defending a retaliation lawsuit. Also, Zuelke inferred that an employee, who apparently was easily identifiable, engaged in fraudulent behavior by taking sick leave under the FMLA when she was not sick. He published his remarks on a Facebook page for all the world to see.   Hello … defamation, slander, libel.

Research shows that between a quarter and  third of workers are the victims of health endangering bullying, most by a supervisor.  This problem costs American employers billions every year in unnecessary turnover, absenteeism, higher health care costs, and needless litigation.

Filed Under: DISPATCHES, STATE, WORKPLACE BULLYING Tagged With: , , American Federation of State, , Family and Medical Leave Act, Las Vegas Sun, Sherry Truell, State of Nevada, Steven Zuelke, U.S. Department of Labor Wage and Hour Division

Bully Judge gets Clemency (Surprise!)

May 23, 2011 by Leave a Comment

Update: Judge Fuller declared on June 20, 2011 that he will retire from the bench, rather than continue working under strict supervision until the mandatory retirement age of 70. The South Dakota Supreme Court ruled earlier this year that Judge Fuller had to retire unless he agreed to undergo a six-month suspension followed by strict probation for misconduct that included mistreating lawyers, court personnel and others. Fuller claimed he could not afford the cost of the suspension and probation, which he estimated to be $174,000. He says he will start working as an attorney in July.  Fuller, who allegedly sent clerks fleeing from his courtroom in tears, was deemed fully capable of “rehabilitation”  by the South Dakota Supreme Court, which ruled that he could remain on the bench until his retirement if he followed a required plan of action, including behavioral therapy.  PGB

May 20, 2011 – The South Dakota Supreme Court has given 7th Circuit Judge A.P. “Pete” Fuller the chance he sought to remain on the bench until the end of 2013 so that he can retire at the age of 70 with full benefits.

According to the Rapid City Journal, the Court ordered Fuller’s immediate retirement unless he follows a required plan of “rehabilitation.”   He must agree in writing to accept a six-month suspension without pay and an indefinite probation when he returns to the bench.  Fuller must also agree:

  • To pay for the Judicial Qualification Commission’s expenses, including attorney’s fees. The commission had recommended Fuller retire or be removed from the bench.
  •  While on suspension, Fuller would be expected to pay for and complete an accredited course in judicial ethics and resume behavioral therapy until completed.
  • If Fuller returns to the bench, the court will randomly poll judges, attorneys, court personnel and others to monitor his conduct.
  • Any violation of the Code of Judicial Conduct or a failure to comply with the court’s conditions would result in his involuntary retirement.

Although the court granted him clemency, ” Chief Justice David Gilbertson was less than conciliatory in writing for the court in a unanimous opinion,  “Judge Fuller has not only damaged his judicial office but those of every judge in the state.”

“Fuller maligned the reputation of South Dakota’s judiciary. Insulted individual lawyers, has uttered insensitive racial and sexist jokes, has conducted himself on the bench with unconscionable arrogance, has used abuse language, has rudely mistreated employees of the Unified Judicial System, and has flippantly from the bench referred to law enforcement as a ‘bunch of racists’ with no evidentiary basis,” Gilbertson wrote.

However, at the conclusion of his opinion, Justice Gilbertson opines:  “Fuller is capable of rehabilitation.

This is the first time in the court’s 121-year history that it has taken steps to remove a judge from the bench. Fuller was suspended in October after he was charged with violating four canons of South Dakota’s Code of Judicial Ethics.  Fuller, who was appointed to the bench in 2003, fought tenaciously to keep his job, with his lawyers arguing that he thought he was being funny and had never realized  that his actions perceived as bullying.

According to opinion of the high court, two female clerks, one with 40 years of experience, refused to go into Judge Fuller’s courtroom because of his “degrading comments, swearing, anger, and disrespect … While Fuller denied using profanity, he admitted treating [the clerk’s staff] rudely and disrespectfully.” He also referred disparagingly to the presence  of women in the legal profession and called juveniles “peckerheads,” among other things.

Fuller has 30 days to decide whether he will comply with the requirements to remain on the bench.

Filed Under: DISPATCHES, STATE Tagged With: , , , , , ,

New York’s Healthy Workplace Bill (2010)

October 5, 2010 by Leave a Comment

*  This bill was approved by the New York State Senate on May 12, 2010 by a vote of 45 to 16, with one abstention. It failed to gain passage in the House.  See the general blog entry about the Healthy Workplace Bill (HWB) to read an analysis of the problems with the HWB.  It’s needs work! PGB

S1823B: Establishes a civil cause of action for employees who are subjected to an abusive work environment

S1823B Summary Establishes a civil cause of action for employees who are subjected to an abusive work environment.

TITLE OF BILL : An act to amend the labor law, in relation to establishing a private cause of action for an abusive work environment

PURPOSE : To establish a civil cause of action for employees who are subject to an abusive work environment.

SUMMARY OF PROVISIONS : Clearly states the definitions of abusive conduct; abusive work environment; conduct; constructive discharge; employee; employer; malice; negative employment decision; physical harm; and psychological harm.

Section 3 defines Unlawful Employment Practice

Section 4 defines Employer Liability

Section 5 defines Defenses

Section 6 defines Retaliation

Section 7 defines Relief generally Employer liability

Section 8 defines Procedures Private right of action Time limitations

Section 9 defines Effect on Collective Bargaining Agreements

Section 10 defines Effect on other state laws other state laws Worker’s compensation and election remedies

JUSTIFICATION : The social and economic well-being of the state is dependent upon healthy and productive employees. Surveys and studies have documented that between 16 to 21 percent of employees directly experience health-endangering workplace bullying, abuse and harassment, and that this behavior is four times more prevalent than sexual harassment alone. Surveys and studies have also documented that abusive work environments can have serious effects on targeted employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, posttraumatic stress disorder, reduced immunity to infection, stress related gastrointestinal disorders, hypertension, pathophysiologic changes that increase the risk of cardiovascular disease and other such effects. This legislation will provide legal redress for employees who have been harmed, psychologically, physically, or economically. It will also provide legal incentives for employers to prevent and respond to mistreatment of employees at work.
S1823B Text

S T A T E O F N E W Y O R K
1823–B
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:

Section 1. The labor law is amended by adding a new article 20-D to read as follows:
ARTICLE 20-D ABUSIVE WORK ENVIRONMENT SECTION 760. LEGISLATIVE FINDINGS AND INTENT. 761. DEFINITIONS. 762. ABUSIVE WORK ENVIRONMENT. 763. EMPLOYER LIABILITY. 764. DEFENSES. 765. RETALIATION. 766. REMEDIES. 767. ENFORCEMENT. 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. 769. EFFECT OF OTHER LAWS.

S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT. SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00743-04-0
S. 1823–B 2 SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY, DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR DISEASES. FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND SIGNIFICANT INCREASES IN MEDICAL AND WORKERS’ COMPENSATION CLAIMS. THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT. THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT UTES. EXISTING WORKERS’ COMPENSATION PROVISIONS AND COMMON LAW TORT LAW ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS. THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO MISTREATMENT OF EMPLOYEES AT WORK.

S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1. “ABUSIVE CONDUCT” MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO THE EMPLOYER’S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY, NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE’S WORK PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS. 2. “ABUSIVE WORK ENVIRONMENT” MEANS A WORKPLACE IN WHICH AN EMPLOYEE IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS TO ELIMINATE THE ABUSIVE CONDUCT. 3. “CONDUCT” MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS TO ACT. 4. “CONSTRUCTIVE DISCHARGE” MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT. 5. “MALICE” MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN EMPLOYER’S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR S. 1823–B 3 DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT’S KNOWN PSYCHOLOG ICAL OR PHYSICAL VULNERABILITY. 6. “NEGATIVE EMPLOYMENT DECISION” MEANS A TERMINATION, CONSTRUCTIVE DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR DISCIPLINARY ACTION. 7. “PHYSICAL HARM” MEANS THE MATERIAL IMPAIRMENT OF A PERSON’S PHYS ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL. 8. “PSYCHOLOGICAL HARM” MEANS THE MATERIAL IMPAIRMENT OF A PERSON’S MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.

S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.

S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS CONTROL.

S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF. 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER’S LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON THE PLAINTIFF’S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY UPON THE EMPLOYER’S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS, ILLEGAL OR UNETHICAL ACTIVITY.

S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS CHAPTER.

S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT, THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE PLAINTIFF’S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND ATTORNEY FEES. 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT DECISION, SUCH EMPLOYER’S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.

S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE. 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE ALLEGATION OF ABUSIVE WORK ENVIRONMENT. S. 1823–B 4

S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN EMPLOYEE’S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY THE PROVISIONS OF THIS ARTICLE.

S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION. 2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY COMPENSATION AVAILABLE PURSUANT TO THE WORKERS’ COMPENSATION LAW; PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS’ COMPEN SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS ARTICLE FOR THE SAME SUCH CONDITIONS.

S 2. This act shall take effect immediately, and shall apply to abusive conduct occurring on or after such date.

Filed Under: STATE, WORKPLACE BULLYING Tagged With: , , , , , , , , ,

The Healthy Workplace Bill (2010)

September 24, 2010 by Leave a Comment

This is  the  2010 version of the Healthy Workplace Bill,, drafted by  David C. Yamada, Professor, Suffolk University Law School, and supported by the Workplace Bullying Institute.  This proposal was sharply criticized by international scholars and others as being far less protective of worker rights than legislation in other industrialized countries. The bill has been improved since 2010 but still is problematic.  In any case, after more than a decade, it appears unlikely that a state-by-state approach is a viable option to the problem of workplace bullying. This blog supports a federal national approach, recognizing that workers who may need the most protection live in so-called “pro business” states that  will never adopt a workplace anti-bully protections. Also, workplace bullying is an important health and safety issue for workers and the United States lags behind other industrialized countries in addressing the problem.  Workers need help now! PGB

 ———————————————————————————————-

THE HEALTHY WORKPLACE BILL

By David C. Yamada, Professor, Suffolk University Law School

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.

Filed Under: STATE, Uncategorized, WORKPLACE BULLYING Tagged With: , , , , , , ,