Introduced Version
House Bill 2054 History
| Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 2054
(By Delegates Longstreth, Caputo and Fleischauer)
[Introduced February 13, 2013; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business 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; creating The Healthy and Safe
Workplace Act; providing for healthy workplaces by providing
remedies for hostile work environments; making legislative
findings; defining terms; establishing unlawful employment
practices; providing liabilities and affirmative defenses for
employers and employees; 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; providing remedies and
procedure; limiting the amount recoverable for emotional distress; and establishing time limitations for commencing
actions.
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 hereby finds and declares that:
_______________(a) The social and economic well-being of the state is
dependent upon healthy and productive employees;
_______________(b) 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;
_______________(c) 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;
_______________(d) 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;
_______________(e) 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 such
mistreatment;
_______________(f) 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
_______________(g) 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:
_______________(a) To provide legal relief for employees who have been
harmed, psychologically, physically or economically, by being
deliberately subjected to abusive work environments; and
_______________(b) 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:
_______________(a) "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.
_______________(b) "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.
_______________(c) "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.
_______________(d) "Constructive discharge" exists where: (1) The employee
reasonably believed he or she was subjected to abusive conduct; (2)
the employee resigned because of that abusive conduct; and (3)
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 shall be considered a termination, and,
therefore, an adverse employment action within the meaning of this
article.
_______________(e) "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.
_______________(f) "Psychological harm" means the material impairment of a
person's mental health, as established by competent evidence.
_______________(g) "Physical harm" means the material impairment of a
person's physical health or bodily integrity, as established by
competent evidence.
_______________(h) "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 shall be 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 shall be 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 is deemed 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 may
not be 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 shall be in addition to
any remedies provided under any other law, and nothing in this
article relieves 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 bill creates The Healthy and Safe Workplace Act.
The bill provides for healthy workplaces by provides remedies for
hostile work environments. The bill makes legislative findings. The
bill defines terms. The bill establishes unlawful employment
practices. The bill provides liabilities and affirmative defenses
for employers and employees. The bill bans retaliation in certain
circumstances. The bill provides an employer duty to respond to
third-party acts of malice. The bill restricts applicability to
employment practices not covered by existing state laws on human
rights or wrongful discharge. The bill provides remedies and
procedure. The bill limits the amount recoverable for emotional
distress. The bill and establishes time limitations for commencing
actions.
This article is new; therefore, it has been completely
underscored.