HOUSE OF REPRESENTATIVES
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO WORKPLACE 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 unhealthy, abusive work environments where workplace bullying, abuse, and harassment are prevalent occurrences, independent of membership in a protected group. As a result, these employees may experience physical and psychological harm, which negatively impacts job performance and job safety, often manifesting in injuries and illnesses. The National Institute for Occupational Safety and Health recognizes general harassment, including workplace bullying, as a form of workplace violence.
Workplace bullying has been defined by the National Institute for Occupational Safety and Health as the repeated intimidation, slandering, social isolation, or humiliation by one or more persons against another. Congress has found that employee injuries and illness that arise out of work situations impose a substantial burden on businesses and that these injuries and illnesses can be reduced through the establishment and enforcement of minimum health and safety standards. The legislature further finds that employees need protection from the repeated health-impairing mistreatment of one person by another to promote safe and healthy work environments.
The purpose of this Act is to protect public employees from an abusive work environment and provide remedies when they are victims of abusive conduct of another public employee.
SECTION 2. Chapter 78, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"Part . Abusive work environments
§78-A Definitions. As used in this part:
"Abusive conduct" means:
(1) 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;
(2) Subjection of an employee by the employee's employer to an abusive work environment; or
(3) Retaliation in any manner against an employee because the employee:
(A) Opposed any unlawful safety violation under this part; or
(B) Made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including internal proceedings, arbitration or mediation proceedings, and legal actions.
Abusive conduct includes 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; the gratuitous sabotage or undermining of a person's work performance; or interference with subsequent work opportunities by defamatory evaluation. A single act normally may constitute abusive conduct if the act is especially severe and egregious; provided that the severity, nature, and frequency of any conduct objected to shall be considered in determining whether acts constitute abusive conduct.
"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.
"Department" means the department of human resources development.
"Economic harm" means any material pecuniary loss, including the loss of earnings or other benefits related to employment, to the extent recovery is allowed under the law.
"Employee" means any public employee of the State or any county, and the political subdivisions and agencies thereof, any employees under contract with the State or county, any civil service employees, and any probationary or provisional employees of the State or county.
"Employer" means the governor in the case of the State, the respective mayors in the case of the counties, the chief justice of the supreme court in the case of the judiciary, the board of education in the case of the department of education, the board of regents in the case of the University of Hawaii, the Hawaii health systems corporation board in the case of the Hawaii health systems corporation, and any individual who represents one of the employers or acts in the employer's interest in dealing with public employees. In the case of the judiciary, the administrative director of the courts shall be the employer in lieu of the chief justice for purposes which the chief justice determines would be prudent or necessary to avoid conflict.
"Malice" means the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification. The existence of malice 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, disciplinary action, or interference with subsequent work opportunities by defamatory evaluation.
"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.
§78-B Abusive conduct as a workplace safety and health violation; workers' compensation. Abusive conduct shall constitute a workplace safety and health violation, as well as a work injury for which workers' compensation benefits may be paid, as provided in section 78-K.
§78-C Liability; limitations. An employee who is subjected to abusive conduct shall have a cause of action under this part for emotional distress against:
(1) Another employee who is claimed to have made the abusive conduct; provided that the employer shall be vicariously liable for the acts of the employee claimed to have made the abusive conduct; provided further that the employer shall be vicariously liable up to $25,000 under this paragraph; or
(2) The employer:
(A) Who directly commits abusive conduct; provided that the employer shall not be liable for punitive damages if the abusive conduct did not result in a negative employment decision; or
(B) Whose workplace is an abusive work environment.
§78-D Complaint against abusive conduct. Any employee subjected to abusive conduct may file with the department a complaint in writing, stating the name and address of the employee or employer alleged to have committed the abusive conduct, and shall set forth the particulars thereof and other information as may be required by the department.
§78-E Proceeding and hearing on complaint. (a) After the filing of any complaint, the department shall serve a copy of the complaint upon the employer or employee alleged to have committed the abusive conduct. Service may be by delivery to the employer or employee or by mail. The employer or employee may file an answer to the complaint.
(b) A hearing on the complaint shall be held by the department in conformance with chapter 91.
§78-F Findings and order. (a) If the department finds, after a hearing, that an employee was subject to abusive conduct by an employer or another employee, the department may order the employer to take any necessary action to remedy the situation.
(b) Any person aggrieved by the order of the department shall be entitled to judicial review as provided by section 91‑14.
§78-G Enforcement of order; judgment rendered thereon. If an employer or employee found to have committed abusive conduct fails or neglects to comply with the final order of the department from which no appeal has been taken as provided by this part, the department or the employee affected may apply to the circuit court of the judicial circuit in which the employer or employee found by the department to have committed the abusive conduct resides or transacts business for a judgment to enforce the provisions of the final order and for any other appropriate relief. In any proceeding to enforce the provisions of the final order, the department or the employee affected need only file with the court proof that notice of the hearing was given, a certified copy of the final order, and proof that the final order was served. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though the judgment had been rendered in an action duly heard and determined by the court.
§78-H 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; provided that the 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, including 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.
§78-I Statute of limitations. An action under this part shall be commenced no later than three years after the last act that constitutes or comprises the alleged violation.
§78-J 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 abusive work environments.
(b) Employers shall be responsible for:
(1) 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; and
(2) Educating supervisors and employees on abusive work environments and the legal consequences provided under this part.
§78-K Remedies. (a) In addition to an award of damages under section 78-C, a court may enjoin the defendant from engaging in conduct constituting abusive conduct and 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, and attorney's fees.
(b) An employee making a claim under this part may elect to accept workers' compensation benefits under chapter 386 for a work injury in lieu of bringing an action under this part. An employee who elects to accept workers' compensation benefits shall be barred from bringing an action under this part for the same abusive conduct. For purposes of chapter 386, emotional distress suffered by an employee shall be deemed to constitute a work injury.
(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 the action, including costs or fees of any nature and reasonable attorney's fees, to be paid by the defendant."
SECTION 3. Section 386-1, Hawaii Revised Statutes, is amended by amending the definition of "work injury" to read as follows:
injury" means a personal injury suffered under the conditions specified in
.] or pursuant to findings of the department as
provided in section 78-F."
SECTION 4. Chapter 78, Hawaii Revised Statutes, is amended by designating sections 78-1 through 78-53 as part I, entitled "General Provisions".
SECTION 5. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect on July 1, 2013.
Abusive Work Environment; Public Employment
Makes abusive conduct against a public employee a workplace safety and health violation.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.