California employers will soon be required to train supervisory employees on the subject of workplace bullying. On September 9, 2014, Governor Brown approved a bill that requires employers to add this subject to the biennial anti-harassment training they are already required to provide to supervisory employees.
Currently, California employers with 50 or more employees must provide training to all supervisory employees every two years regarding prevention of sexual and other unlawful harassment, and prevention of unlawful discrimination and retaliation in the workplace. Starting January 1, 2015, the training will also have to address the prevention of “abusive conduct.”
At first blush, employers might not view the addition of such training as particularly significant. One would expect employers with anti-harassment policies to include “bullying” or “abusive conduct” as examples of prohibited workplace conduct. But, in fact, the anti-bullying training portends the addition of a new and potentially troubling dimension to an employer’s legal obligations in governing the work environment.
Under the new law, the definition of “abusive conduct” is very broad. It includes “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.” Examples of abusive conduct 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.” A single act, however, does not constitute “abusive conduct,” unless it is especially severe and egregious.
But more significant is the next potential development in the field of employment law. Standing alone, the new law is somewhat odd because it requires training to prevent “abusive conduct,” but it does not outlaw the conduct itself. It is likely that California employers will soon be faced with a new law that actually prohibits “abusive conduct” in the workplace. Such a law, if enacted, would represent a significant change for employers. Under existing law, California employers are required to prevent harassment that is “based on” or “because of” a legally-protected status or characteristic, e.g. race, gender, religion, etc. However, it has long been held that such laws are not intended to guarantee general workplace civility, and that employers cannot be subject to civil liability merely because employees allege to have been subjected to generic harassment or other uncivil conduct. Allegations of generic harassment, to the extent they result in any employee injury, have been subject to the sole and exclusive remedy of workers’ compensation. A new law that uncouples abusive or harassing conduct from the reasons or motivations for such conduct would be transformative. It would create a workplace civility law and open a new legal basis for civil actions against California’s employers.
Undoubtedly, most employers already prohibit conduct that is covered by the new training law. Yet given the inherent vagaries of what a “reasonable person” might find “threatening, intimidating, or humiliating,” or what constitutes “gratuitous sabotage or undermining of a person’s work performance,” it is quite another matter to attach potential civil liability for failing to prevent such conduct. It raises the specter that interpersonal or other types of common workplace disputes, coupled with the mere allegations of “abusive conduct,” could form the basis of claims in civil litigation – a very unwelcome prospect for California employers.
Whether such a new law is enacted and its scope remain to be seen. In the meantime, California employers should make note of the new training requirement and implement changes to their harassment policies and training programs to bring them into compliance with the new law. Employment counsel at Hill Farrer can provide assistance with updating the content of your current harassment training program to comply with the new law.