Florida Senate - 2013                                     SB 308
       
       
       
       By Senator Braynon
       
       
       
       
       36-00604-13                                            2013308__
    1                        A bill to be entitled                      
    2         An act relating to abusive workplace environments;
    3         creating the “Abusive Workplace Environment Act”;
    4         providing legislative findings and purposes for the
    5         act; defining terms; prohibiting a public employer
    6         from subjecting his or her employee to an abusive
    7         workplace environment; declaring that an employer
    8         violates the act if he or she subjects an employee to
    9         an abusive workplace environment or has knowledge that
   10         any person has subjected an employee of the employer
   11         to an abusive workplace environment and has failed to
   12         exercise reasonable care to prevent and promptly
   13         correct the abusive conduct; prohibiting an employer
   14         from retaliating in any manner against an employee
   15         because the employee has opposed an unlawful
   16         employment practice or has made a charge, testified,
   17         assisted, or participated in any manner in an
   18         investigation or proceeding; providing that an
   19         employer may assert an affirmative defense against the
   20         employee under certain circumstances; providing that
   21         an employee may be individually liable if he or she
   22         commits an unlawful employment practice; providing
   23         that an employee may assert an affirmative defense
   24         against an employee or employer under certain
   25         circumstances; providing that a violation of the act
   26         may be enforced solely by a private right of action;
   27         requiring that a civil action filed under the act must
   28         be commenced no later than 1 year after the date of
   29         the last incident that is part of the alleged unlawful
   30         employment practice; providing that if a person is
   31         found to have committed an unlawful employment
   32         practice that culminated in an adverse employment
   33         action, the court may enjoin the person from engaging
   34         in the unlawful employment practice and may order any
   35         other relief that it deems appropriate, including
   36         punitive damages and attorney fees; providing that if
   37         an employer has been found to have committed an
   38         unlawful employment practice, but the act did not
   39         culminate in an adverse employment action, the
   40         employer is liable for damages for emotional distress
   41         but is not subject to punitive damages; providing that
   42         the remedies provided by the act are cumulative to
   43         other laws; providing for an exception for workers’
   44         compensation awards; providing an effective date.
   45  
   46  Be It Enacted by the Legislature of the State of Florida:
   47  
   48         Section 1. Abusive workplace environment.—
   49         (1) SHORT TITLE.—This section may be cited as the “Abusive
   50  Workplace Environment Act.
   51         (2)LEGISLATIVE FINDINGS AND PURPOSE.—
   52         (a)The Legislature finds that:
   53         1. The social and economic well-being of the state is
   54  dependent upon healthy and productive employees.
   55         2. Approximately one-half of all employees directly
   56  experience health-endangering workplace bullying, abuse, and
   57  harassment, and this mistreatment is approximately four times
   58  more prevalent than sexual harassment.
   59         3. Workplace bullying and harassment can inflict serious
   60  harm upon targeted employees, including feelings of shame and
   61  humiliation, severe anxiety, depression, suicidal tendencies,
   62  impaired immune systems, hypertension, increased risk of
   63  cardiovascular disease, and symptoms consistent with
   64  posttraumatic stress disorder.
   65         4. An abusive workplace environment can have serious
   66  consequences for employers, including reduced employee
   67  productivity and morale, higher turnover and absenteeism rates,
   68  and increases in medical and workers’ compensation claims.
   69         5. If a mistreated employee who has been subjected to
   70  abusive treatment at work cannot establish that the abusive
   71  behavior was motivated by race, color, sex, national origin, or
   72  age, he or she is unlikely to be protected by the law against
   73  such mistreatment.
   74         6. Unlike employment discrimination statutes, legal
   75  protection from abusive workplace environments should not be
   76  limited to behavior grounded in protected-class status.
   77         7. Existing workers’ compensation provisions and common law
   78  tort actions fall short of those necessary to eliminate abusive
   79  behavior or to provide adequate relief to employees who have
   80  been harmed by an abusive workplace environment.
   81         (b) The purpose of this section is to provide:
   82         1. Legal relief to employees who have been harmed,
   83  psychologically, physically, or economically, by being
   84  deliberately subjected to an abusive workplace environment; and
   85         2. Incentives for employers to prevent and respond to
   86  abusive mistreatment of employees at work.
   87         (3)DEFINITIONS.As used in this section, the term:
   88         (a) “Abusive conduct” means a pattern of behavior or a
   89  single act of an employer or employee in the workplace which is
   90  performed with malice and is unrelated to an employer’s
   91  legitimate business and which a reasonable person would find
   92  hostile or offensive considering the severity, nature, and
   93  frequency of the conduct or the severity and egregiousness of
   94  the conduct. Abusive conduct includes, but is not limited to:
   95         1. Repeated infliction of verbal abuse, such as the use of
   96  derogatory remarks, insults, and epithets;
   97         2. Verbal or physical conduct that a reasonable person
   98  would find threatening, intimidating, or humiliating;
   99         3. Sabotaging or undermining a person’s work performance;
  100  or
  101         4. Attempting to exploit an employee’s known psychological
  102  or physical vulnerability.
  103         (b) “Abusive workplace environment” means an environment in
  104  which an employee is subjected to abusive conduct that is so
  105  severe that it causes physical or psychological harm to the
  106  employee.
  107         (c) “Adverse employment action” means an employment action,
  108  including, but not limited to, termination of the employee,
  109  demotion or unfavorable reassignment of the employee, failure to
  110  promote the employee, disciplinary action against the employee,
  111  or a reduction in the compensation of the employee.
  112         (d)“Conduct” means all forms of behavior, including acts
  113  and omission of acts.
  114         (e) Employee” means an individual who is employed by an
  115  employer.
  116         (f) “Employer” means a state agency or any county,
  117  municipality, political subdivision, school district, community
  118  college, or state university.
  119         (g) “Malice” means the desire to see another person suffer
  120  psychological, physical, or economic harm, without legitimate
  121  cause or justification, which is demonstrated by the presence of
  122  factors such as outward expressions of hostility, harmful
  123  conduct inconsistent with an employer’s legitimate business
  124  interest, a continuation of harmful, illegitimate conduct after
  125  a person requests that it cease or demonstrates outward signs of
  126  emotional or physical distress as a result of the conduct, or
  127  attempts to exploit a person’s known psychological or physical
  128  vulnerability.
  129         (h) “Physical harm” means the material impairment of a
  130  person’s physical health or bodily integrity, as established by
  131  competent evidence.
  132         (i) “Psychological harm” means the material impairment of a
  133  person’s mental health, as established by competent evidence.
  134         (4)UNLAWFUL EMPLOYMENT PRACTICES.—
  135         (a) An employer may not subject an employee to an abusive
  136  workplace environment.
  137         (b) An employer may not retaliate in any manner against an
  138  employee because the employee has opposed an unlawful employment
  139  practice under this section, or has made a charge, testified,
  140  assisted, or participated in any manner in an investigation or
  141  proceeding under this section, including, but not limited to,
  142  internal complaints and proceedings, arbitration and mediation
  143  proceedings, or legal actions.
  144         (5) EMPLOYER LIABILITY AND DEFENSE.—
  145         (a) An employer violates this section if the employer
  146  subjects an employee to an abusive workplace environment or has
  147  knowledge that any person has subjected an employee to an
  148  abusive workplace environment and has failed to exercise
  149  reasonable care to prevent and promptly correct the abusive
  150  conduct.
  151         (b) If the alleged unlawful employment practice does not
  152  include an adverse employment action, the employer may assert an
  153  affirmative defense that:
  154         1. The employer exercised reasonable care to prevent or
  155  promptly correct any actionable behavior; and
  156         2. The complainant employee unreasonably failed to take
  157  advantage of appropriate preventive or corrective opportunities
  158  provided by the employer.
  159         (6)EMPLOYEE LIABILITY AND DEFENSE.—
  160         (a) An employee may be individually liable for an unlawful
  161  employment practice against another employee.
  162         (b) The employee may assert an affirmative defense that:
  163         1. The employee committed the unlawful employment practice
  164  at the direction of the employer, under threat of an adverse
  165  employment action;
  166         2. The complaint is based on an adverse employment action
  167  reasonably made for poor performance, misconduct, or economic
  168  necessity;
  169         3. The complaint is based on a reasonable performance
  170  evaluation; or
  171         4. The complaint is based on a defendant’s reasonable
  172  investigation into potentially illegal or unethical activity.
  173         (7)PROCEDURES.—
  174         (a) This section may be enforced solely by a private right
  175  of action.
  176         (b) A civil action filed under this section must be
  177  commenced no later than 1 year after the date of the last
  178  incident that is part of the alleged adverse employment action.
  179         (8) RELIEF FOR THE EMPLOYEE.—
  180         (a) If a person or employer has been found to have
  181  committed an unlawful employment practice under this section
  182  which culminated in an adverse employment action, the court may
  183  enjoin the person from engaging in the unlawful employment
  184  practice and may order any other relief the court deems
  185  appropriate, including, but not limited to, reinstatement of the
  186  employee, removal of the offending party from the complainant’s
  187  work environment, back pay, front pay, medical expenses,
  188  compensation for emotional distress, punitive damages, and
  189  attorney fees.
  190         (b) If a person or employer has been found to have
  191  committed an unlawful employment practice under this section
  192  which did not culminate in an adverse employment action, the
  193  employer is liable for damages not to exceed $25,000 for
  194  emotional distress and may not be held liable for punitive
  195  damages. This paragraph does not apply to individually named
  196  employee defendants.
  197         (9) CUMULATIVE REMEDIES; REIMBURSEMENT REQUIRED.—
  198         (a)The remedies provided in this section are in addition
  199  to any other remedy provided under law.
  200         (b) This section does not relieve any person from any other
  201  statutory liability, duty, penalty, or punishment.
  202         (c)If an employee receives workers’ compensation for
  203  medical costs for the same injury or illness pursuant to both
  204  this section and the Workers’ Compensation Act, or compensation
  205  in cash payments under both this section and the Workers’
  206  Compensation Act for the same period of time the employee is not
  207  working as a result of the compensable injury or illness or the
  208  unlawful employment practice, the payments of workers’
  209  compensation shall be reimbursed from compensation paid under
  210  this section.
  211         Section 2. This act shall take effect July 1, 2013.