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Clients With Employees In California Should Be Aware Of A New California Law Requiring Anti-Bullying Training In The Workplace

Rosanna Sattler December 5, 2014

California recently passed a law which will require the addition of an anti-bullying component to the required workplace sexual harassment training.  On September 9, 2014, Governor Jerry Brown signed AB-2053, which goes into effect January 1, 2015.  It requires supervisors of eligible employers to undergo training designed to prevent “abusive conduct,” in addition to the sexual harassment prevention training required by the California Fair Employment and Housing Act.  Under the California law, any person who becomes a supervisor of an eligible employer must undergo the training within six months of becoming a supervisor.  Also, all supervisors will be required to retrain once every two years.  If your business has a presence in California and you employ 50 or more employees (regardless of whether they all work in or are based in California), you should make sure your training programs address this new development.  However, only California-based supervisors will need the new training.

According to a 2014 survey by the Workplace Bullying Institute, 27% of American employees experience abusive conduct at work.  Another 21% say they have witnessed workplace bullying.  The survey also found that supervisors are responsible for 56% of the abusive conduct.  There seems to be a growing awareness of workplace bullying in America, so the new California law is probably a sign of things to come.  Other states are sure to follow.

TRAINING

Code, § 12950.1. The new anti-bullying addition to the training requirement doesn’t increase the amount of training employers must provide, but it does require that the training programs include the new abuse prevention content.  While the law does not provide specifics on the training’s content, it does mandate that it be provided by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.  There is nothing in the law that says what portion of the two-hour training should be devoted to preventing workplace bullying.  The training should include “practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation...”.  Considering the language about “practical examples”, a sufficient training program should involve something more than just watching a video for two hours.  There should be some interactive or hands-on component of the training, such as role play or group discussion.  The two-hour training is intended as a “minimum threshold”, and employers should not be discouraged from providing longer and more thorough training – although there is no requirement that the training  be any longer than the required minimum.

DEFINITION OF BULLYING

Abusive conduct may take many forms. What is abusive to one person may seem like normal conduct to another.  As this is a new law, there isn’t any legal history to help define what conduct would be considered acceptable behavior under  the law - such as discipline, counseling, and constructive criticism - and what would constitute abusive conduct and bullying.  The law does provide a broad list of actions that may constitute abusive conduct:

“abusive conduct” means 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.  A single act shall not constitute abusive conduct, unless especially severe and egregious.

With this range of behavior in mind, it is important to be sensitive to employee concerns. Providing a robust anti-bullying training and policy will help employers to better manage and defend any problems that arise.

WHAT THE DEFINITION MEANS

For bullying to be considered “abusive conduct”, it must be done with “malice”.  The California civil code defines malice as conduct “intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights of safety of others.”  This definition is similar to the one adopted by the California courts.  Generally, malice is the highest form of intent for a harmful action - so for bullying to be malicious, it must be such that it indicates a conscious desire of the supervisor to vex, annoy or injure the employee.

IS THIS A NEW LIABILITY – IS MY BUSINESS GOING TO BE SUED?

The law does not give employees a new way to sue for bullying, but it does state that “if an employer [is in violation], the department [may seek an order requiring the employer to comply with these requirements.”  It is unclear what such an order would involve. Regardless, employers should adhere to the requirements as a means to protect themselves from employee lawsuits for discrimination.  Under the California Fair Employment and Housing Act, if an employee is bullied based on being part of a protected class (race, gender, religion, nationality, disability, age, sexual orientation, etc.), he can sue for harassment and discrimination.

It is important to remember that providing supervisors with anti-bullying and sexual harassment prevention training will not insulate an employer from lawsuits alleging discrimination.  However, good training and policies stand as a sign that an employer is aware of the law, the potential problem, and has taken steps to ensure that their workplace is free from any abusive conduct – which is always helpful in defending a lawsuit.

WHAT YOU CAN DO

Considering the increased regulation requiring workplace training, it will be important to update your employee handbook and workplace code of conduct to explicitly state your anti-bullying policy.  Our employment lawyers can assist your business with compliance and other legal obligations under the law, and provide training to management and supervisors.

If you have any questions or need additional information regarding this, please contact Rosanna Sattler or any other attorney in our Employment Group.

The author wishes to thank Clark Wheeler for his assistance with this client alert. Clark is a law student at Northeastern University School of Law. He is an articles editor for the Northeastern University Law Journal.

Client Advisory is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2014 Posternak Blankstein & Lund LLP. All rights reserved.

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