Report Title:

Abusive Work Environments

Description:

Prohibits the unlawful employment practice of subjecting an employee to an abusive work environment. Provides a legal recourse for employees who have been psychologically, physically, or economically harmed by being deliberately subjected to abusive work environments.

HOUSE OF REPRESENTATIVES

H.B. NO.

232

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to employment 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 abusive work environments where workplace bullying, abuse, and harassment are prevalent occurrences. The legislature further finds that employees must be protected from this type of repeated mistreatment of being targeted by one or more employees, even in the absence of such abuse being the result of race, color, sex, national origin, or age.

The purpose of this Act is to provide legal recourse for employees who have been psychologically or physically harmed by being deliberately subjected to abusive work environments.

SECTION 2. Chapter 378, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . abusive work environments

§378-    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 employer's legitimate business interests.

(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; or the gratuitous sabotage or undermining of a person's work performance.

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.

"Harassment" means:

(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault; or

(2) An intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, including contact by electronic or telephonic means of communication, and that serves no legitimate purpose; provided that the course of conduct would cause a reasonable person to suffer emotional distress.

"Malice":

(1) Means the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification;

(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, or disciplinary action.

"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.

§378-    Unlawful practices. (a) It shall be an unlawful employment practice 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 has:

(A) Opposed any unlawful employment practice 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.

§378-    Liability; limitations. (a) An employer shall be vicariously liable for an unlawful employment practice 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 employment practice under this part that did not result in a negative employment decision.

§378-    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 employment practice.

§378-    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.

§378-    Enforcement jurisdiction. The department shall have jurisdiction over the subject of unlawful employment practices made unlawful by this part.

§378-    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 such workplace environments.

(b) Employers shall be responsible for 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.

§378-    Rules. The director shall adopt rules pursuant to chapter 91 as the director deems necessary for the purposes of carrying out this part.

§378-    Remedies. (a) The court may enjoin the defendant from engaging in an unlawful employment practice found to have been 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) The remedies contained in this part shall be available in addition to those remedies available under workers' compensation law. However, a person who believes that the person has been subjected to an unlawful employment practice 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 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 action, including costs of fees of any nature and reasonable attorney's fees, to be paid by the defendant."

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

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