Revision: Jan. 28, 2013, midnight
HB 591 – AS INTRODUCED
2013 SESSION
06/03
HOUSE BILL 591
AN ACT relative to an abusive work environment and the health and safety of public employees.
SPONSORS: Rep. Schuett, Merr 20; Rep. J. Schmidt, Hills 28; Rep. Davis, Merr 20; Rep. Turcotte, Merr 22; Rep. Emerson, Ches 11; Rep. Irwin, Sull 6; Rep. Gale, Hills 28; Rep. Alicea, Merr 8
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill prohibits abusive work environments for public employees.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
13-0671
06/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Thirteen
AN ACT relative to an abusive work environment and the health and safety of public employees.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Safety and Health of Employees; Abusive Work Environment Purpose Statement. The social and economic well-being of the state of New Hampshire is dependent on healthy and productive employees. The harassment and abuse of employees in the workplace is more prevalent than sexual harassment. Such harassment can inflict serious harm upon targeted employees such as feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder. 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 worker compensation claims. If mistreated employees who have been subjected to abusive treatment at work cannot establish that the behavior was motivated by race, creed, color, age, marital status, familial status, physical or mental disability, or national origin, they are unlikely to be protected by the law against such treatment. Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as that provided by employment discrimination statutes, and there does not exist in New Hampshire law appropriate pathways to provide adequate relief to employees who have been harmed by abusive work environments. Therefore, it is necessary to:
I. Provide legal relief for employees who have been harmed psychologically, physically, or economically by being deliberately subjected to abusive work environments; and
II. Provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.
2 Abusive Work Environments. Amend the chapter heading of RSA 275-E to read as follows:
CHAPTER 275-E
WHISTLEBLOWERS’ PROTECTION ACT
AND ABUSIVE WORK ENVIRONMENTS
3 New Subdivision; Abusive Work Environment. Amend RSA 275-E by inserting after section 9 the following new subdivision:
Abusive Work Environment
275-E:10 Definitions. In this subdivision:
I. “Abusive conduct” means employee acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the employee’s conduct, including, but 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; sabotage or undermining of an employee’s work performance; or attempts to exploit an employee’s known psychological or physical vulnerability. Normally, no single act shall constitute abusive conduct, but an especially severe and egregious act may meet this standard.
II. “Abusive work environment” means an employment condition where any employee, acting with malice, subjects another employee to abusive conduct so severe that it causes tangible harm.
III. “Adverse employment action” means an outcome which negatively affects an employee. Such outcomes include but shall not be limited to termination, constructive discharge, demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction in compensation.
IV. “Constructive discharge” means an employee:
(a) Reasonably believed he or she was subjected to abusive conduct;
(b) Resigned because of that abusive conduct; and,
(c) Prior to resigning, brought to the employer’s attention the existence of the abusive conduct, and the employer failed to take reasonable steps to correct the situation.
V. “Employee” means any person employed to work for an employer. Volunteers or auxiliary members of a fire, police department, ambulance service, or the state police, whether paid or not paid, shall be deemed to be in the employment of a political subdivision when performing official service or duty for a political subdivision.
VI. Notwithstanding RSA 275-E:1, II “employer” means the state or any of its political subdivisions operating a place of employment.
VII. “Malice” means the desire to cause pain, injury, or distress to another.
VIII. “Physical harm” means the material impairment of a person’s physical health or bodily integrity as established by competent evidence.
IX. “Psychological harm” means the material impairment of a person’s mental health, as established by competent evidence.
X. “Tangible harm” means psychological harm or physical harm.
275-E:11 Abusive Work Environment.
I. No employer or employee shall subject another employee to an abusive work environment.
II. No employer or employee shall retaliate in any manner against an employee who has complained of an abusive work environment 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-E:12 Liability.
I. An employer shall be vicariously liable for a violation of this subdivision by its employee.
II. Where the alleged abusive work environment does not include an adverse employment action, it shall be an affirmative defense for an employer only that:
(a) The employer exercised reasonable care to prevent and correct promptly any actionable behavior; and
(b) The complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.
III. An employee may be individually liable for a violation of RSA 275-E:11.
IV. It shall be an affirmative defense for an employee only that the employee committed a violation of RSA 275-E:11 at the direction of the employer, under threat of an adverse employment action.
275-E:13 Rights and Remedies.
I. An employee or former employee shall commence an action under this section no later than 3 years after the last act that constitutes the alleged violation of RSA 275-E:11.
II. Any employee or former employee who alleges a violation of rights under RSA 275-E:11 and who has reported this behavior to his or her supervisor or higher level management without it being resolved may seek a private right of action or obtain a hearing with the commissioner of labor or a designee appointed by the commissioner.
III. Following such hearing where an employee or employer has been found to have violated RSA 275-E:11, the labor commissioner or designee may enjoin that employer or employee from engaging in the unlawful employment practice and 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, and attorney’s fees. Decisions rendered by the commissioner of labor under paragraph II may be appealed pursuant to RSA 541. The complainant may also bring a civil action for damages or injunctive relief or both, in the superior court for the county in which the alleged unlawful practice occurred or in his or her county of residence no later than 3 years after the last alleged violation occurred.
IV. The remedies provided for in this section shall be in addition to any remedies provided under any other law, and nothing in this section shall 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 section and workers’ compensation, or compensation under both this section and workers’ compensation 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 section.
3 Effective Date. This act shall take effect January 1, 2014.