Report Title:
Occupational Safety and Health; Abusive Work Environments
Description:
Prohibits an employer from subjecting an employee to an abusive work environment. Provides legal recourse for employees who have been psychologically, physically, or economically harmed as a result of being deliberately subjected to an abusive work environment.
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THE SENATE |
S.B. NO. |
3269 |
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TWENTY-THIRD LEGISLATURE, 2006 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to occupational safety and health.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that healthy and productive employees are the cornerstones of successful businesses and a prosperous economy. Unfortunately, many employees are subjected to unhealthy, abusive work environments where workplace bullying, abuse, and harassment are prevalent occurrences, independent of membership in a protected group. As a result, these employees may experience physical and psychological harm, which negatively impacts job performance and job safety, often manifesting in injuries and illnesses. The National Institute for Occupational Safety and Health (NIOSH) recognizes general harassment, including workplace bullying, as a form of workplace violence.
Workplace bullying has been defined by the NIOSH as the repeated intimidation, slandering, social isolation, or humiliation by one or more persons against another. Congress has found that employee injuries and illness that arise out of work situations impose a substantial burden on businesses and that these injuries and illnesses can be reduced through the establishment and enforcement of minimum health and safety standards. Accordingly, the Hawaii occupational safety and health law ensures safe and healthful working conditions for all employees throughout the State. The legislature determines that in addition to the current protections under the law, employees need protection from the repeated health-impairing mistreatment of one person by another in order to promote safe and healthy work environments.
The purpose of this Act is to provide legal recourse for employees who have been psychologically or physically harmed or who have suffered from negative employment decisions by being deliberately subjected to abusive work environments.
SECTION 2. Chapter 396, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"Part . Abusive work environments
§396- Definitions. As used in this part:
"Abusive conduct":
(1) Means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests; and
(2) 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 that a reasonable person would find threatening, intimidating, or humiliating; the gratuitous sabotage or undermining of a person's work performance; or interference with subsequent work opportunities by defamatory evaluation.
Single acts normally shall not constitute abusive conduct, unless especially severe and egregious, and the severity, nature, and frequency of any conduct objected to shall be considered.
"Abusive work environment" means a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee.
"Conduct" means all forms of behavior, including acts and omissions of acts.
"Constructive discharge" means abusive conduct that causes the employee to resign, and where prior to resigning, the employee brings to the employer's attention the existence of the abusive conduct, and the employer fails to take reasonable steps to eliminate the abusive conduct.
"Economic harm" means any material pecuniary loss, including the loss of earnings or other benefits related to employment, to the extent recovery is allowed under the law.
"Malice":
(1) Means the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification; and
(2) May be inferred from the presence of one or more factors such as outward expressions of hostility, harmful conduct inconsistent with an employer's legitimate business interests, a continuation of harmful, illegitimate conduct after the complainant requests that it cease or demonstrates outward signs of emotional or physical distress in the face of the conduct, or attempts to exploit the complainant's known psychological or physical vulnerability.
"Negative employment decision" means a termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, disciplinary action, or interference with subsequent work opportunities by defamatory evaluation.
"Physical harm" means the material impairment of a person's physical health or bodily integrity, as documented by a competent physician or supported by competent expert evidence at trial.
"Psychological harm" means the material impairment of a person's mental health, as documented by a competent psychologist, psychiatrist, or psychotherapist, or supported by competent expert evidence at trial.
§396- Unlawful safety violations. It shall be an unlawful safety violation under this part to:
(1) Subject an employee to an abusive work environment; or
(2) Retaliate in any manner against an employee because the employee:
(A) Opposed any unlawful safety violation under this part; or
(B) Made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including but not limited to, internal proceedings, arbitration or mediation proceedings, and legal actions.
§396- Liability; limitations. (a) An employer shall be vicariously liable for an unlawful safety violation committed by its employee in violation of this part.
(b) The employer's liability for damages for emotional distress shall not exceed $25,000, and the employer shall not be liable for punitive damages where an employer has been found to have committed an unlawful safety violation under this part that did not result in a negative employment decision.
§396- Affirmative defenses. It shall be an affirmative defense to an action for an abusive work environment that:
(1) The employer exercised reasonable care to prevent and promptly correct the abusive conduct and the aggrieved employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer. This defense is not available when abusive conduct culminates in a negative employment decision; and
(2) The complaint is grounded primarily upon a negative employment decision made consistent with an employer's legitimate business interests, such as a termination or demotion based on an employee's poor performance, or the complaint is grounded primarily upon an employer's reasonable investigation of potentially illegal or unethical activity.
§396- Statute of limitations. An action commenced under this part shall be commenced no later than three years after the last act that constitutes or comprises the alleged unlawful safety violation.
§396- Education. (a) The department shall develop and disseminate, at no cost to employers, information on abusive work environments and the legal consequences that employees or employers encounter if they contribute to the creation or perpetuation of abusive work environments.
(b) Employers shall be responsible for:
(1) Posting or providing the information provided by the department under subsection (a) in a prominent place in the workplace that is readily accessible to employees; and
(2) Educating supervisors and employees on abusive work environments and the legal consequences provided under this part.
§396- Remedies. (a) The court may enjoin the defendant from engaging in conduct constituting an unlawful safety violation committed under this part. The court 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) A person who believes that the person has been subjected to an unlawful safety violation under this part may elect to accept workers' compensation benefits in connection with the underlying behavior in lieu of bringing an action under this part. A person who elects to accept workers' compensation benefits shall not bring an action under this part for the same underlying behavior.
(c) In any action brought under this part, the court, in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow costs of the action, including costs or fees of any nature and reasonable attorney's fees, to be paid by the defendant."
SECTION 3. Chapter 396, Hawaii Revised Statutes, is amended by designating sections 396-1 through 396-20 as "Part I General Provisions."
SECTION 4. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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