HB 1403 – AS INTRODUCED
2010 SESSION
06/04
HOUSE BILL 1403
AN ACT relative to wrongful termination.
SPONSORS: Rep. Butynski, Ches 4
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill prohibits bullying in the workplace.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
10-2549
06/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to wrongful termination.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Purpose Statement. Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as provided for under employment discrimination statutes. 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. Therefore, it is the purpose of this subdivision to provide legal relief for employees who can demonstrate significant psychological, physical, or economic harm as a result of being deliberately subjected to abusive work environments, and to provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.
2 New Subdivision; Wrongful Termination. Amend RSA 275 by inserting after section 69 the following new subdivision:
275:70 Definitions. In this chapter:
I. “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 includes, 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 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.
II. “Abusive work environment” means an environment in which an employer, as defined in RSA 275-E:1, II, acting with malice, subjects an employee to abusive conduct so severe it causes tangible harm to the employee.
III. “Adverse employment action” means an action to terminate from employment, demote, make an unfavorable reassignment, limit promotion, discipline, or reduce compensation, and includes a constructive discharge.
IV. “Constructive discharge” means a situation where the employee reasonably believed he or she was subjected to abusive conduct and resigned because of that abusive conduct, after bringing to the employer’s attention the existence of the abusive conduct and the employer’s failure to take reasonable steps to correct the situation.
V. “Malice” means pain, injury, or distress to another.
VI. “Tangible harm” means psychological harm or physical harm.
275:71 Abusive Work Environment. No employer, as defined in RSA 275-E:1, II, shall subject an employee to an abusive work environment.
275:72 Retaliation. No employer shall retaliate in any manner against an employee who has opposed any unlawful employment practice under this subdivision, or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this subdivision, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings, and legal actions.
275:73 Employer Liability and Defense. An employer shall be liable for the existence of an abusive work environment within any workplace under its control. Where the alleged unlawful employment practice does not include an adverse employment action, it shall be an affirmative defense for an employer that:
I. The employer exercised reasonable care to prevent and promptly correct any actionable behavior; and
II. The complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.
275:74 Affirmative Defenses. It shall be an affirmative defense that:
I. The complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity;
II. The complaint is based on a reasonable performance evaluation; or,
III. The complaint is based on a defendant’s reasonable investigation about potentially illegal or unethical activity.
275:75 Remedy. Where a defendant has been found to have committed an unlawful employment practice under this subdivision, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other appropriate relief, including, but not limited to, reinstatement, removal of the offending party from the complainant’s work environment, back pay, medical expenses, compensation for emotional distress, punitive damages, and attorney’s fees.
275:76 Effect on Other Laws. Nothing in this subdivision shall exempt any person from any liability, duty, or penalty provided by any other state law, rule or regulation.
275:77 Liability Limited. Where an employer has been found to have committed an unlawful employment practice under this subdivision that did not culminate in an adverse employment action, the employer’s liability for damages for emotional distress shall not exceed $25,000. Individually named employee defendants shall not be liable for damages for emotional distress.
3 Effective Date. This act shall take effect January 1, 2011.