Bill Text: WV HB2159 | 2018 | Regular Session | Introduced
Bill Title: The Healthy and Safe Workplace Act
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2018-01-10 - To House Industry and Labor [HB2159 Detail]
Download: West_Virginia-2018-HB2159-Introduced.html
WEST virginia Legislature
2017 regular session
By
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to the Committee on Industry and Labor then the Judiciary.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new article, designated
§21-3E-1, §21-3E-2, §21-3E-3, §21-3E-4, §21-3E-5, §21-3E-6, §21-3E-7, §21-3E-8
and §21-3E-9, all relating to labor; providing for healthy workplaces by
providing remedies for hostile work environments; defining terms; providing an
affirmative defense for employers; banning retaliation in certain
circumstances; providing an employer duty to respond to third-party acts of
malice; restricting applicability to employment practices not covered by
existing state laws on human rights or wrongful discharge; and providing
certain time limitations for commencing action.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new article,
designated §21-3E-1, §21-3E-2, §21-3E-3, §21-3E-4, §21-3E-5, §21-3E-6, §21-3E-7,
§21-3E-8 and §21-3E-9, all to read as follows:
ARTICLE 3E. THE HEALTHY AND SAFE WORKPLACE ACT.
§21-3E-1. Findings.
The Legislature finds
and declares that:
(1) The social and
economic well-being of the state is dependent upon healthy and productive
employees;
(2) Between thirty-seven
percent and fifty-nine percent of employees directly experience health-endangering
workplace bullying, abuse and harassment, and this mistreatment is
approximately four times more prevalent than sexual harassment alone;
(3) Workplace bullying,
mobbing and harassment can inflict serious harm upon targeted employees,
including feelings of shame and humiliation, severe anxiety, depression,
suicidal tendencies, cardiovascular disease and symptoms consistent with
posttraumatic stress disorder;
(4) Abusive work
environments can have serious consequences for employers, including reduced
employee productivity and morale, higher turnover and absenteeism rates and
increases in medical and workers' compensation claims;
(5) If mistreated
employees who have been subjected to abusive treatment at work cannot establish
that the behavior was motivated by race, color, sex, sexual orientation,
national origin or age, they are unlikely to be protected by the law against
that mistreatment;
(6) Legal protection
from abusive work environments should not be limited to behavior grounded in
protected class status as that provided for under employment discrimination
statuses; and
(7) Existing workers'
compensation plans and common-law tort actions are inadequate to discourage
this behavior or to provide adequate relief to employees who have been harmed
by abusive work environments.
§21-3E-2. Purpose.
The Legislature states
the purpose of this article is:
(1) To provide legal
relief for employees who have been harmed, psychologically, physically or economically,
by being deliberately subjected to abusive work environments; and
(2) To provide legal
incentive for employers to prevent and respond to abusive mistreatment of
employees at work.
§21-3E-3. Definitions.
For the purposes of this
article:
"Abusive
conduct" means conduct, including acts, omissions, or both, that a
reasonable person would find hostile, based on the severity, nature, and
frequency of the defendant's conduct.
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 of a threatening, intimidating or humiliating
nature; the sabotage or undermining of an employee's work performance; or
attempts to exploit an employee's known psychological or physical
vulnerability. A single act normally
will not constitute abusive conduct, but an especially severe and egregious act
may meet this standard.
"Adverse employment
action" means an action that includes, but is not limited to, a
termination, demotion, unfavorable reassignment, failure to promote,
disciplinary action, or reduction in compensation.
"Abusive work
environment" means an environment that exists when the defendant subjects
an employee to abusive conduct so severe that it causes tangible harm to the
employee.
"Constructive
discharge" exists where: (A) The employee reasonably believed he or she
was subjected to abusive conduct; (B) the employee resigned because of that
abusive conduct; (C) prior to resigning, the employee brought to the employer's
attention the existence of the abusive conduct and the employer failed to take
reasonable steps to correct the situation.
A constructive discharge is a termination and, therefore, an adverse
employment action within the meaning of this article.
"Employer"
includes private employers as well as the state or any subdivision thereof, any
county, municipality, unit of local government, school district, community
college district, municipal or public corporation, or state university.
"Psychological
harm" means the material impairment of a person's mental health, as
established by competent evidence.
"Physical
harm" means the material impairment of a person's physical health or
bodily integrity, as established by competent evidence.
"Tangible
harm" means psychological harm or physical harm.
§21-3E-4. Unlawful employment practices.
(a) It is an unlawful
employment practice under this article to subject an employee to an abusive
work environment as defined by this article. For the purposes of this article,
expression protected by the First Amendment of the Constitution of the United
States and Article III of the West Virginia Constitution including the exercise
of free speech, free expression and free exercise of religion or expression of
religiously based views may not be considered "abusive conduct"
unless the intent is to intimidate or harass.
(b) It is an unlawful
employment practice under this article to retaliate in any manner against an
employee who has opposed any unlawful employment practice under this article,
or who has made a charge, testified, assisted or participated in any manner in
an investigation or proceeding under this article, including, but not limited
to, internal complaints and proceedings, arbitration and mediation proceedings
and legal actions.
§21-3E-5. Employer liability and defense.
(a) An employer is
vicariously liable for an unlawful employment practice, as defined by this
article, committed by its employee.
(b) Where the alleged
unlawful employment practice does not include an adverse employment action, it
is an affirmative defense for an employer if:
(1) The employer
exercised reasonable care to prevent and correct promptly any actionable
behavior; and
(2) The complainant
employee unreasonably failed to take advantage of appropriate preventive or
corrective opportunities provided by the employer.
§21-3E-6. Employee
liability and defense.
(a) An employee may be
individually liable for an unlawful employment practice as defined by this
article.
(b) It is an affirmative
defense for an employee only that the employee committed an unlawful employment
practice, as defined in this article, at the direction of the employer, under
threat of an adverse employment action.
§21-3E-7. Relief.
(a) Where a defendant
has been found to have committed an unlawful employment practice under this
article, the court may enjoin the defendant from engaging in the unlawful
employment practice and may order any other relief that it considers
appropriate, including, but not limited to, reinstatement or removal of the
offending party from the complainant's work environment. The plaintiff may also
recover from the defendant appropriate compensation for back pay, front pay,
medical expenses, emotional distress, humiliation and loss of personal dignity and
punitive damages. The court shall also
award the costs of litigation, including reasonable attorney fees and witness
fees, to the complainant.
(b) Where an employer
has been found to have committed an unlawful employment practice under this
article that did not culminate in an adverse employment action, its liability
for damages for emotional distress may not exceed $50,000, and it is not
subject to punitive damages. This
provision does not apply to an individually named employee defendant.
§21-3E-8. Procedures.
(a) This article may be
enforced solely by a private right of action with the right to a jury trial.
(b) An action under this
article must be commenced no later than one year after the last act that
constitutes the alleged unlawful employment practice.
§21-3E-9. Effect on other legal relationships.
The remedies provided in
this article are in addition to any remedies provided under any other law, and
this article does not relieve any person from any liability, duty, penalty or
punishment provided by any other law, except that if an employee receives
workers' compensation for medical costs for the same injury or illness pursuant
to both this article and the Workers' Compensation Act, or compensation under
both this article and that act 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 article.
NOTE: The purpose of this bill is
to create a new cause of action to deter workplace bullying. This bill makes it
an unlawful employment practice to subject an employee to an abusive work
environment that exists when the defendant, acting with malice, subjects an
employee to abusive conduct so severe that it causes tangible harm to the
employee. Further, this bill makes it an unlawful employment practice to
retaliate in any manner against an employee who has made a charge, testified,
assisted or participated in any manner against an employee who has made a
charge, testified, assisted or participated in any manner in an investigation
or proceeding regarding bullying in the workplace.
Strike-throughs indicate language
that would be stricken from a heading or the present law, and underscoring
indicates new language that would be added.