Full Text of HB0942 97th General Assembly
HB0942ham001 97TH GENERAL ASSEMBLY | 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 | 3 | | everything after the enacting clause with the following:
| 4 | | "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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| 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 | 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 | | (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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| 1 | | 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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| 1 | | 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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| 1 | | (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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| 1 | | compensation shall be reimbursed from compensation paid under | 2 | | this Act.".
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