Rep. Constance A. Howard

Filed: 3/8/2011

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 942

2    AMENDMENT NO. ______. Amend House Bill 942 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. Short title. This Act may be cited as the
5Abusive Work Environment Act.
 
6    Section 5. Findings and purpose.
7    (a) Findings. The General Assembly finds that:
8        (1) The social and economic well-being of the State is
9    dependent upon healthy and productive employees;
10        (2) Between 37% and 59% of employees directly
11    experience health-endangering workplace bullying, abuse,
12    and harassment, and this mistreatment is approximately 4
13    times more prevalent than sexual harassment alone;
14        (3) Workplace bullying, mobbing, and harassment can
15    inflict serious harm upon targeted employees, including
16    feelings of shame and humiliation, severe anxiety,

 

 

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1    depression, suicidal tendencies, impaired immune systems,
2    hypertension, increased risk of cardiovascular disease,
3    and symptoms consistent with post-traumatic stress
4    disorder;
5        (4) Abusive work environments can have serious
6    consequences for employers, including reduced employee
7    productivity and morale, higher turnover and absenteeism
8    rates, and increases in medical and workers' compensation
9    claims;
10        (5) If mistreated employees who have been subjected to
11    abusive treatment at work cannot establish that the
12    behavior was motivated by race, color, sex, sexual
13    orientation, national origin, or age, they are unlikely to
14    be protected by the law against such mistreatment;
15        (6) Legal protection from abusive work environments
16    should not be limited to behavior grounded in protected
17    class status as that provided for under employment
18    discrimination statutes; and
19        (7) Existing workers' compensation plans and
20    common-law tort actions are inadequate to discourage this
21    behavior or to provide adequate relief to employees who
22    have been harmed by abusive work environments.
23    (b) Purpose. It is the purpose of this Act:
24        (1) To provide legal relief for employees who have been
25    harmed, psychologically, physically, or economically, by
26    being deliberately subjected to abusive work environments;

 

 

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1    and
2        (2) To provide legal incentive for employers to prevent
3    and respond to abusive mistreatment of employees at work.
 
4    Section 10. Definitions. As used in this Act:
5    (a) Abusive work environment. An abusive work environment
6exists when the defendant, acting with malice, subjects an
7employee to abusive conduct so severe that it causes tangible
8harm to the employee.
9        (1) Abusive conduct. Abusive conduct is conduct,
10    including acts, omissions, or both, that a reasonable
11    person would find hostile, based on the severity, nature,
12    and frequency of the defendant's conduct. Abusive conduct
13    may include, but is not limited to: repeated infliction of
14    verbal abuse such as the use of derogatory remarks,
15    insults, and epithets; verbal or physical conduct of a
16    threatening, intimidating, or humiliating nature; the
17    sabotage or undermining of an employee's work performance;
18    or attempts to exploit an employee's known psychological or
19    physical vulnerability. A single act normally will not
20    constitute abusive conduct, but an especially severe and
21    egregious act may meet this standard.
22        (2) Malice. Malice is defined as the desire to cause
23    pain, injury, or distress to another.
24    (b) Tangible harm. Tangible harm is defined as
25psychological harm or physical harm.

 

 

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1        (1) Psychological harm. Psychological harm is the
2    material impairment of a person's mental health, as
3    established by competent evidence.
4        (2) Physical harm. Physical harm is the material
5    impairment of a person's physical health or bodily
6    integrity, as established by competent evidence.
7    (c) Adverse employment action. An adverse employment
8action includes, but is not limited to, a termination,
9demotion, unfavorable reassignment, failure to promote,
10disciplinary action, or reduction in compensation.
11    (d) Constructive discharge. A constructive discharge shall
12be considered a termination, and, therefore, an adverse
13employment action within the meaning of this Act. A
14constructive discharge exists where: (1) the employee
15reasonably believed he or she was subjected to abusive conduct;
16(2) the employee resigned because of that abusive conduct; and
17(3) prior to resigning, the employee brought to the employer's
18attention the existence of the abusive conduct and the employer
19failed to take reasonable steps to correct the situation.
20    (e) Employer. "Employer" includes the State or any
21subdivision thereof, any county, municipality, unit of local
22government, school district, community college district,
23municipal or public corporation, or State university.
 
24    Section 15. Unlawful employment practices.
25    (a) Abusive Work Environment. It shall be an unlawful

 

 

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1employment practice under this Act to subject an employee to an
2abusive work environment as defined by this Act.
3    (b) Retaliation. It shall be an unlawful employment
4practice under this Act to retaliate in any manner against an
5employee who has opposed any unlawful employment practice under
6this Act, or who has made a charge, testified, assisted, or
7participated in any manner in an investigation or proceeding
8under this Act, including, but not limited to, internal
9complaints and proceedings, arbitration and mediation
10proceedings, and legal actions.
 
11    Section 20. Employer liability and defense.
12    (a) An employer shall be vicariously liable for an unlawful
13employment practice, as defined by this Act, committed by its
14employee.
15    (b) Where the alleged unlawful employment practice does not
16include an adverse employment action, it shall be an
17affirmative defense for an employer only that:
18        (1) the employer exercised reasonable care to prevent
19    and correct promptly any actionable behavior; and
20        (2) the complainant employee unreasonably failed to
21    take advantage of appropriate preventive or corrective
22    opportunities provided by the employer.
 
23    Section 25. Employee liability and defense.
24    (a) An employee may be individually liable for an unlawful

 

 

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1employment practice as defined by this Act.
2    (b) It shall be an affirmative defense for an employee only
3that the employee committed an unlawful employment practice as
4defined in this Act at the direction of the employer, under
5threat of an adverse employment action.
 
6    Section 30. Affirmative defenses. It shall be an
7affirmative defense that:
8    (a) The complaint is based on an adverse employment action
9reasonably made for poor performance, misconduct, or economic
10necessity;
11    (b) The complaint is based on a reasonable performance
12evaluation; or
13    (c) The complaint is based on a defendant's reasonable
14investigation about potentially illegal or unethical activity.
 
15    Section 35. Relief.
16    (a) Relief generally. Where a defendant has been found to
17have committed an unlawful employment practice under this Act,
18the court may enjoin the defendant from engaging in the
19unlawful employment practice and may order any other relief
20that is deemed appropriate, including, but not limited to,
21reinstatement, removal of the offending party from the
22complainant's work environment, back pay, front pay, medical
23expenses, compensation for emotional distress, punitive
24damages, and attorney's fees.

 

 

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1    (b) Employer liability. Where an employer has been found to
2have committed an unlawful employment practice under this Act
3that did not culminate in an adverse employment action, its
4liability for damages for emotional distress shall not exceed
5$25,000, and it shall not be subject to punitive damages. This
6provision does not apply to individually named employee
7defendants.
 
8    Section 40. Procedures.
9    (a) Private right of action. This Act shall be enforced
10solely by a private right of action.
11    (b) Time limitations. An action under this Act must be
12commenced no later than one year after the last act that
13constitutes the alleged unlawful employment practice.
 
14    Section 45. Effect on other legal relationships. The
15remedies provided for in this Act shall be in addition to any
16remedies provided under any other law, and nothing in this Act
17shall relieve any person from any liability, duty, penalty or
18punishment provided by any other law, except that if an
19employee receives workers' compensation for medical costs for
20the same injury or illness pursuant to both this Act and the
21Workers' Compensation Act, or compensation under both this Act
22and that Act in cash payments for the same period of time not
23working as a result of the compensable injury or illness or the
24unlawful employment practice, the payments of workers'

 

 

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1compensation shall be reimbursed from compensation paid under
2this Act.".