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