Bill Text: HI SB131 | 2012 | Regular Session | Introduced

---

Bill Title: Occupational Safety; Abusive Work Environments

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2011-12-01 - Carried over to 2012 Regular Session. [SB131 Detail]

Download: Hawaii-2012-SB131-Introduced.html

---

THE SENATE	S.B. NO.	131
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to workplace practices.

 

 

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 recognizes general harassment, including workplace bullying, as a form of workplace violence.

     Workplace bullying has been defined by the National Institute for Occupational Safety and Health 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 repeated or severe and egregious health-impairing mistreatment of one person by another to promote safe and healthy work environments.

     The purpose of this Act is to make an abusive work environment an occupational safety violation.

     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‑A  Definitions.  As used in this part:

     "Abusive conduct" means:

     (1)  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;

     (2)  Subjection of an employee by the employee's employer to an abusive work environment; or

     (3)  Retaliation 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.

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 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.  A single act normally may constitute abusive conduct if the act is especially severe and egregious; provided that the severity, nature, and frequency of any conduct objected to shall be considered in determining whether acts constitute abusive conduct.

     "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" means the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification.  Malice 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-B  Abusive conduct as an occupational safety and health violation; workers' compensation.  Abusive conduct shall constitute an occupational safety and health violation under this part, as well as a workers' compensation claim as provided in section 396‑G.

     §396-C  Liability; limitations.  An employee who is subjected to abusive conduct shall have a cause of action under this part for emotional distress against:

     (1)  Another employee who is claimed to have made the abusive conduct; provided that the employer shall be vicariously liable for the acts of the employee who is claimed to have made the abusive conduct; provided that the employer shall be vicariously liable up to $25,000 under this paragraph; or

     (2)  The employer:

         (A)  Who directly commits abusive conduct; provided that the employer shall not be liable for punitive damages if the abusive conduct did not result in a negative employment decision; or

         (B)  Whose workplace is an abusive work environment.

     §396-D  Affirmative defenses.  It shall be an affirmative defense to an action claiming 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; provided that the 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, including a termination or demotion based on the aggrieved employee's poor performance, or that the complaint is grounded primarily upon an employer's reasonable investigation of potentially illegal or unethical activity.

     §396-E  Statute of limitations.  An action under this part shall be commenced no later than three years after the last act that constitutes or comprises the alleged unlawful safety and health violation.

     §396-F  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-G  Remedies.  (a)  In addition to an award of damages under section 396-C, the court may enjoin an employee or employer from engaging in conduct constituting abusive conduct and 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, and attorney's fees.

     (b)  An employee making a claim under section 396-C, may elect to accept workers' compensation benefits under chapter 386 for a work injury in lieu of bringing an action under this part.  An employee who elects to accept workers' compensation benefits shall be barred from bringing an action under this part for the same abusive conduct.  For purposes of chapter 386, emotional distress suffered by an employee shall be deemed to constitute a work injury.

     (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.  Section 386-1, Hawaii Revised Statutes, is amended by amending the definition of "work injury" to read as follows:

     ""Work injury" means a personal injury suffered under the conditions specified in section 386-3[.] or as provided in section 396-G."

     SECTION 4.  Chapter 396, Hawaii Revised Statutes, is amended by designating sections 396-1 through 396-20 as part I, entitled "General Provisions".

     SECTION 5.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

Report Title:

Occupational Safety; Abusive Work Environments

 

Description:

Makes abusive conduct against an employee in the workplace a violation of occupational safety and health law.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.