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