Currently under California law, if an employee is subjected to hostile, offensive or humiliating behavior by a supervisor or co-worker that is not due to the person’s protected-class status (e.g., race, age, disability, whistle blower, protected union activity, etc.) the sole remedy is a stress claim under workers’ compensation law. Simply, except for a workers’ compensation claim, the law does not protect employees from bullies or jerks in the workplace.
Recently, Governor Jerry Brown signed into law Assembly Bill 2053 (“AB 2053”) which may become the first step toward the creation of civil liability for such behavior in the workplace.
AB 2053 amends the law requiring employers with 50 or more employees to provide supervisors with at least two hours of sexual harassment prevention training every two years. (Government Code Section 12950.1) Specifically, AB 2053 expands Section 12950.1 to mandate that the training now include “prevention of abusive conduct.”
“Abusive conduct” is defined in AB 2053 to mean “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include 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. A single act shall not constitute abusive conduct, unless especially severe and egregious.”
This new training requirement becomes effective January 1, 2015. While the State has not yet adopted regulations setting forth such details as to how much time must be spent on the “abusive conduct” portion of the training, all future trainings should include this as a significant component. I will certainly be including it in future trainings that I conduct.
While AB 2053 does not create a right to file a civil lawsuit based on “abusive conduct,” it could be read as creating a public policy against workplace bullying and/or lead to the adoption of additional laws creating a right to a civil lawsuit and damages for such behavior. If this were to happen it could lead to a flood of lawsuits by employees who feel like they have been mistreated by supervisors or co-workers.
by Daniel W. Rowley, November 2014