Full Text of HB0374 96th General Assembly
HB0374ham001 96TH GENERAL ASSEMBLY
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Rep. Arthur L. Turner
Filed: 3/18/2009
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| AMENDMENT TO HOUSE BILL 374
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| AMENDMENT NO. ______. Amend House Bill 374 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 1. Short title. This Act may be cited as the | 5 |
| Abusive 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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| 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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| 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 | 6 |
| exists when the defendant, acting with malice, subjects an | 7 |
| employee to abusive conduct so severe that it causes tangible | 8 |
| harm 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 | 25 |
| psychological harm or physical harm. |
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| (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 | 8 |
| action includes, but is not limited to, a termination, | 9 |
| demotion, unfavorable reassignment, failure to promote, | 10 |
| disciplinary action, or reduction in compensation. | 11 |
| (d) Constructive discharge. A constructive discharge shall | 12 |
| be considered a termination, and, therefore, an adverse | 13 |
| employment action within the meaning of this Act. A | 14 |
| constructive discharge exists where: (1) the employee | 15 |
| reasonably 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 | 18 |
| attention the existence of the abusive conduct and the employer | 19 |
| failed to take reasonable steps to correct the situation. | 20 |
| (e) Employer. "Employer" includes the State or any | 21 |
| subdivision thereof, any county, municipality, unit of local | 22 |
| government, school district, community college district, | 23 |
| municipal 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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| employment practice under this Act to subject an employee to an | 2 |
| abusive work environment as defined by this Act. | 3 |
| (b) Retaliation. It shall be an unlawful employment | 4 |
| practice under this Act to retaliate in any manner against an | 5 |
| employee who has opposed any unlawful employment practice under | 6 |
| this Act, or who has made a charge, testified, assisted, or | 7 |
| participated in any manner in an investigation or proceeding | 8 |
| under this Act, including, but not limited to, internal | 9 |
| complaints and proceedings, arbitration and mediation | 10 |
| proceedings, and legal actions. | 11 |
| Section 20. Employer liability and defense. | 12 |
| (a) An employer shall be vicariously liable for an unlawful | 13 |
| employment practice, as defined by this Act, committed by its | 14 |
| employee. | 15 |
| (b) Where the alleged unlawful employment practice does not | 16 |
| include an adverse employment action, it shall be an | 17 |
| affirmative 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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| employment practice as defined by this Act. | 2 |
| (b) It shall be an affirmative defense for an employee only | 3 |
| that the employee committed an unlawful employment practice as | 4 |
| defined in this Act at the direction of the employer, under | 5 |
| threat of an adverse employment action. | 6 |
| Section 30. Affirmative defenses. It shall be an | 7 |
| affirmative defense that: | 8 |
| (a) The complaint is based on an adverse employment action | 9 |
| reasonably made for poor performance, misconduct, or economic | 10 |
| necessity; | 11 |
| (b) The complaint is based on a reasonable performance | 12 |
| evaluation; or | 13 |
| (c) The complaint is based on a defendant's reasonable | 14 |
| investigation about potentially illegal or unethical activity. | 15 |
| Section 35. Relief. | 16 |
| (a) Relief generally. Where a defendant has been found to | 17 |
| have committed an unlawful employment practice under this Act, | 18 |
| the court may enjoin the defendant from engaging in the | 19 |
| unlawful employment practice and may order any other relief | 20 |
| that is deemed appropriate, including, but not limited to, | 21 |
| reinstatement, removal of the offending party from the | 22 |
| complainant's work environment, back pay, front pay, medical | 23 |
| expenses, compensation for emotional distress, punitive | 24 |
| damages, and attorney's fees. |
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| (b) Employer liability. Where an employer has been found to | 2 |
| have committed an unlawful employment practice under this Act | 3 |
| that did not culminate in an adverse employment action, its | 4 |
| liability for damages for emotional distress shall not exceed | 5 |
| $25,000, and it shall not be subject to punitive damages. This | 6 |
| provision does not apply to individually named employee | 7 |
| defendants. | 8 |
| Section 40. Procedures. | 9 |
| (a) Private right of action. This Act shall be enforced | 10 |
| solely by a private right of action. | 11 |
| (b) Time limitations. An action under this Act must be | 12 |
| commenced no later than one year after the last act that | 13 |
| constitutes the alleged unlawful employment practice. | 14 |
| Section 45. Effect on other legal relationships. The | 15 |
| remedies provided for in this Act shall be in addition to any | 16 |
| remedies provided under any other law, and nothing in this Act | 17 |
| shall relieve any person from any liability, duty, penalty or | 18 |
| punishment provided by any other law, except that if an | 19 |
| employee receives workers' compensation for medical costs for | 20 |
| the same injury or illness pursuant to both this Act and the | 21 |
| Workers' Compensation Act, or compensation under both this Act | 22 |
| and that Act in cash payments for the same period of time not | 23 |
| working as a result of the compensable injury or illness or the | 24 |
| unlawful employment practice, the payments of workers' |
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| compensation shall be reimbursed from compensation paid under | 2 |
| this Act.".
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