BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Senator Ben Hueso, Chair
Date of Hearing: June 25, 2014 2013-2014 Regular
Session
Consultant: Alma Perez-Schwab Fiscal:Yes
Urgency: No
Bill No: AB 2053
Author: Gonzalez
As Introduced/Amended: February 20, 2014
SUBJECT
Employment discrimination or harassment: education and training:
abusive conduct
KEY ISSUE
Should the Legislature require that existing sexual harassment
training and education for supervisory employees include
training regarding the prevention of abusive conduct?
ANALYSIS
Existing law , under the Fair Employment and Housing Act (FEHA)
prohibits harassment and discrimination in employment because
of, among others, race, color, religion, sex, gender, sexual
orientation, age (Government Code §12940,12945, 12945.2) and/or
retaliation for protesting illegal discrimination related to one
of these categories.
Existing law further requires employers to ensure a workplace
free of sexual harassment by implementing minimum requirements
which include the posting of information at the worksite
regarding the illegality of sexual harassment and distributing
to employees an information sheet on sexual harassment.
(Government Code§12950)
Existing law requires employers of 50 or more employees to
provide at least two hours of classroom or other effective
interactive training and education regarding sexual harassment
to all supervisory employees within six months of their
assumption of a supervisory position, and thereafter every two
years. This training, however, is intended to establish a
minimum threshold and does not discourage for longer, more
frequent, or more elaborate training and education regarding
workplace harassment. If an employer violates these
requirements, the Department of Fair Employment and Housing may
seek an order requiring compliance. (Gov. Code §12950.1)
Among other things, the training and education required must
include:
Information and practical guidance regarding federal and
state law on sexual harassment prevention and remedies
available for victims of sexual harassment in employment;
Practical examples aimed at instructing supervisors in
the prevention of harassment, discrimination, and
retaliation.
This Bill would expand on existing law related to sexual
harassment training for supervisory employees to also include
training on the prevention of "abusive conduct."
Specifically, this bill would:
1)Require existing training and education regarding sexual
harassment to also include the prevention of "abusive conduct"
as a component of its programs.
2)Defines "abusive conduct" 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.
3)Specifies that a single act shall not constitute abusive
conduct, unless especially severe or egregious.
COMMENTS
Hearing Date: June 25, 2014 AB 2053
Consultant: Alma Perez-Schwab Page 2
Senate Committee on Labor and Industrial Relations
1. Need for this bill?
The Workplace Bullying Institute, a U.S. organization
dedicated to the eradication of workplace bullying,
commissioned Zogby Analytics to conduct an online survey of
1,000 adults in the U.S. regarding workplace bullying. Results
from the 2014 survey found that 27% of Americans have suffered
abusive conduct at work, another 21% have witnessed it and 72%
are aware that workplace bullying happens (2014 WBI: U.S.
Workplace Bullying Survey).
Existing law requires employers in California to ensure a
workplace free of sexual harassment by implementing minimum
requirements including the posting of information regarding
the illegality of sexual harassment and distribution of an
information sheet. For supervisory employees, the law goes a
little further in requiring employers of 50 or more employees
to provide at least two hours of classroom or other effective
interactive training and education regarding sexual harassment
within six months of their assumption of a supervisory
position, and thereafter every two years.
This bill would attempt to reduce the incidence of workplace
bullying by additionally requiring that existing training and
education received by supervisory employees also include
prevention of "abusive conduct" as a component of its
programs.
2. Proponent Arguments :
According to proponents, abusive work environments are
unfortunately a growing epidemic throughout the nation. The
author argues that this type of abusive work environments can
reduce productivity and morale, which may lead to higher
absenteeism rates, frequent turnover, and even increases in
medical and workers' compensation claims. According to
proponents, studies have estimated the financial cost of
workplace abuse being as much as $200 billion annually.
This bill aims to prevent workplace bullying by requiring the
inclusion of training and education of "abusive conduct" to
the already required sexual harassment training that every
Hearing Date: June 25, 2014 AB 2053
Consultant: Alma Perez-Schwab Page 3
Senate Committee on Labor and Industrial Relations
supervisor of entities with more than 50 employees has to go
through every two years. According to proponents, this bill
takes a measured approach to the problem and rather than being
punitive, the bill seeks to prevent this from happening in the
first place by educating managers. Moreover, it couples this
education with sexual harassment training as it is not
uncommon for the two problems to occur hand in hand.
Writing in support of the measure, the San Diego Chapter of
the American Society of Training & Development and the
National Workplace Bullying Coalition, are also suggesting a
revision to the language of the bill, suggesting that the word
"malice" be removed from the definition of "abusive conduct"
arguing that it is not possible to determine the prevalence of
intentional behavior, and because intention doesn't matter -
they argue, if one individual finds another's behavior hostile
or offensive, it should be stopped whether the behavior was
intended or not.
3. Opponent Arguments :
According to the California Association for Health Services at
Home, existing law requires employers to provide sexual
harassment training to all supervisory employees and
encourages that additional training and educational programs
be included to help ensure a safe workplace. They argue that
nothing prevents an employer from incorporating into existing
harassment programs further training relative to abusive
conduct. However, they argue that if enacted, this bill would
increase employer costs through the establishment of a new
employer mandate.
4. Prior Legislation :
AB 1825(Reyes) of 2004: Chaptered
This bill requires employers of 50 or more employees to
provide two hours of training and education on sexual
harassment to all supervisors once every two years, and the
state to provide the same within existing resources.
AB 1582(Koretz) of 2003: Died - never heard in a Policy
Committee
Hearing Date: June 25, 2014 AB 2053
Consultant: Alma Perez-Schwab Page 4
Senate Committee on Labor and Industrial Relations
This bill would have made it an unlawful employment practice
to subject an employee to an abusive work environment and
would have specified that an employer is vicariously liable
for a violation committed by its employee, but would prescribe
certain affirmative defenses.
SUPPORT
California Teamsters Public Affairs Council - Sponsor
American Federation of State, County and Municipal Employees,
AFL-CIO
American Society of Training & Development, San Diego Chapter
California Conference of Machinists
California Conference of the Amalgamated Transit Union
California Labor Federation, ALF-CIO
Consumer Attorneys of California
Engineers & Scientists, IFPTE Local 20
International Longshore and Warehouse Union, Coast Division
National Workplace Bullying Coalition
Professional & Technical Engineers, IFTPE Local 21
UNITE HERE
Utility Workers Union of America, Local 132
OPPOSITION
California Association for Health Services at Home (CAHSAH)
Hearing Date: June 25, 2014 AB 2053
Consultant: Alma Perez-Schwab Page 5
Senate Committee on Labor and Industrial Relations