New Jersey-2012-S3115-Introduced

An Act concerning abusive conduct in the workplace and supplementing Tile 34 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the "Healthy Workplace Act."

2. The Legislature finds and declares that:

a. The social and economic well-being of the State is dependant upon healthy and productive employees.

b. Surveys and studies have shown that between 16 to 21 percent of employees nationwide have directly experienced health-endangering workplace bullying, abuse, and harassment. Those studies further show that this behavior is four times more prevalent than sexual harassment alone.

c. Studies have documented that abusive work environments can have serious effects on affected employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, post-traumatic stress disorder, reduced immunity to infection, gastrointestinal disorders and hypertension. Moreover, abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates and significant increases in medical and workers' compensation claims.

d. Current employment discrimination law provides protection only for those employees who have been subjected to abusive treatment at work on the basis of race, color, sex, national origin, or age. Furthermore, existing workers' compensation laws are inadequate to discourage this kind of behavior or provide adequate redress to employees who have been harmed by abusive work environments.

e. It is therefore appropriate to establish and provide adequate procedures and remedies for employees aggrieved in this way.

3. For the purposes of this act:

"Abusive conduct" means conduct of an employer or employee in the workplace that a reasonable person would find hostile. Abusive conduct includes, but is not limited to: verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; the gratuitous sabotage or undermining of an employee's work performance; attempts to exploit an employee's known psychological or physical vulnerability; or repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets. The determination of whether abusive conduct is present shall include the severity, nature and frequency of the conduct, and, where applicable, the continuation of the conduct after the employee requests that it cease or demonstrates outward signs of emotional or physical distress in the face of the conduct. A single act shall not constitute abusive conduct unless it is especially severe. Conduct shall not be regarded as abusive conduct if an employer provides clear and convincing proof that the conduct is necessary for the furtherance of the employer's legitimate and lawful business interest.

"Abusive work environment" means a workplace in which an employee is subjected to abusive conduct by the employer, employees of the employer, or contractors of the employer which is severe enough to cause physical or psychological harm to the employee.

"Adverse employment action" means a termination of employment, a constructive discharge, a demotion, an unfavorable reassignment, a refusal to promote, or a disciplinary action resulting in monetary loss.

"Constructive discharge" means abusive conduct which causes an employee to resign after the employee has brought to the employer's attention the abusive conduct and the employer failed to take reasonable measures to eliminate the abusive conduct.

"Employee" means any person engaged in service to an employer for wages, salary or other compensation.

"Employer" means a corporation, partnership, individual proprietor, joint venture, firm, company or other similar entity, or any idividual owner, corporate officer or shareholder of the entity who has engaged directly or has aided or abetted the committing of a violation of this act, or the State and any political subdivision or other instrumentality of the State.

"Physical harm" means a material impairment of an employee's physical health or bodily integrity, as documented by a physician or supported by competent expert evidence.

"Psychological harm" means a material impairment of an employee's mental health, as documented by a psychologist, psychiatrist or psychotherapist or supported by competent expert evidence.

4. It shall be an unlawful employment practice:

a. For an employer to permit an employee to be subjected to an abusive work environment; or

b. For an employer or any agent or employee of the employer to subject an employee to an abusive work environment; or

c. For an employer to retaliate or take reprisal in any manner against an employee because the employee has brought an action under this act, or because the employee has made a charge, testified, assisted or participated in any manner in an investigation or proceeding under this act.

5. a. Upon a violation of any provision of this act, an aggrieved employee or former employee may, within one year, institute an action in a court of competent jurisdiction. If the court determines that a defendent committed an unlawful employment practice in violation of the provisions of this act, the court shall order, as applicable: an injunction to restrain any violation of this act which is continuing at the time that the court issues its order; the reinstatement of the employee with full wages, fringe benefits and seniority rights; removal of any offending party from the work environment of the employee; compensation for all lost wages, benefits and other remuneration; compensation for medical costs; compensation for emotional duress; punitive damages; and the payment by the employer of reasonable costs and attorney's fees.

b. If the court determines that the employer committed an unlawful employment practice in violation of the provisions of this act, but that the violation did not include an adverse employment action against the employee or result in any lost work time, earnings or other benefits of employment by the employee, the employer shall not be liable for punitive damages.

c. If the alleged violation is based solely on abusive conduct by coworkers of the aggrieved employee and none of the abusive conduct is by a supervisor or manager, it shall be an affirmative defense that the employer promulgated an effective policy to prohibit and deter the abusive conduct and the employee failed to take advantage of appropriate preventative or corrective opportunities provided by the employer, except that this defense shall not apply if the violation includes an adverse employment action against the employee.

d. The remedies provided for in this section shall be in addition to any remedies provided under any other State or federal law or regulation, and nothing in this act shall relieve any person from any liability, duty, penalty or punishment provided by any other State or federal law or regulation, including the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.) and the workers' compensation law, R.S.34:15-1 et seq., except that if an employee receives compensation for medical costs for the same injury or illness pursuant to both this act and the workers' compensation law, R.S.34:15-1 et seq., or compensation under both this act and that law in cash payments for the same period of time not working as a result of the compensable injury or illness or the unlawful employment practice, the payments of workers' compensation shall be reimbursed from compensation paid under this act. Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee or employer under the provisions of any collective bargaining agreement, including under any grievance procedure or other dispute resolution procedure established pursuant to a collective bargaining agreement.

6. This act shall take effect immediately.

STATEMENT

This bill, the "Healthy Workplace Act," makes it an unlawful employment practice for an employer to permit an employee to be subjected to an abusive work environment, for an employer or any agent or employee of the employer to subject an employee to an abusive work environment, or for an employer to retaliate against an employee because the employee brings or participates in an action, investigation or proceeding related to the abusive work environment.

The bill defines an "abusive work environment" as a workplace in which an employee is subjected to abusive conduct severe enough to cause physical or psychological harm. "Abusive conduct" is defined as workplace conduct of an employer or employee that a reasonable person would find hostile, including threatening, intimidating, or humiliating verbal or physical conduct, gratuitous sabotage or undermining of an employee's work performance, attempts to exploit an employee's known psychological or physical vulnerability, or repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets.

The bill requires a court which determines that a defendant has violated the provisions of this bill to order, as applicable, an injunction to restrain any continuing violation, reinstatement of the employee, removal of any offending party from the employee's work environment, compensation for lost wages, benefits and other remuneration; compensation for medical costs and emotional duress; punitive damages; and reasonable costs and attorney's fees.

Punitive damages are not allowed if the violation does not include an adverse employment action against the employee or result in lost work time, earnings or other benefits.