Florida Senate - 2015                                     SB 892
       By Senator Bullard
       39-01307-15                                            2015892__
    1                        A bill to be entitled                      
    2         An act relating to safe work environments; providing a
    3         short title; providing legislative findings and
    4         purposes; creating part III of chapter 448, F.S.;
    5         providing definitions; providing that subjecting an
    6         employee to an abusive work environment is an unlawful
    7         employment practice; prohibiting retaliation against
    8         an employee who has opposed any unlawful employment
    9         practice or who has made a charge, testified,
   10         assisted, or participated in any manner in an
   11         investigation or proceeding concerning such a claim;
   12         providing for vicarious liability for employers in
   13         certain circumstances; providing a defense; providing
   14         for liability for individual employees in certain
   15         circumstances; providing a defense; providing
   16         affirmative defenses; specifying relief available;
   17         limiting an employer’s liability for emotional
   18         distress and precluding punitive damages in certain
   19         circumstances; specifying that provisions may only be
   20         enforced by a private right of action; providing time
   21         limitation on actions; providing that remedies
   22         provided shall be in addition to and not in place of
   23         other remedies provided in law; providing for
   24         reimbursement of certain compensation; amending ss.
   25         1002.42 and 1006.07, F.S.; requiring screening of
   26         certain persons before entering instructional areas;
   27         providing an effective date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Short title.—This act may be cited as the “Safe
   32  Work Environment Act.”
   33         Section 2. Findings and purpose.—
   34         (1) FINDINGS.—The Legislature finds that:
   35         (a) The social and economic well-being of the state is
   36  dependent upon healthy and productive employees.
   37         (b) Between 37 percent and 59 percent of employees directly
   38  experience health-endangering workplace bullying, abuse, and
   39  harassment, and this mistreatment is approximately four times
   40  more prevalent than sexual harassment alone.
   41         (c) Workplace bullying and harassment can inflict serious
   42  harm upon targeted employees, including feelings of shame and
   43  humiliation, severe anxiety, depression, suicidal tendencies,
   44  impaired immune systems, hypertension, increased risk of
   45  cardiovascular disease, and symptoms consistent with post
   46  traumatic stress disorder.
   47         (d) Abusive work environments can have serious consequences
   48  for employers, including reduced employee productivity and
   49  morale, higher turnover and absenteeism rates, and increases in
   50  medical and workers’ compensation claims.
   51         (e) If mistreated employees who have been subjected to
   52  abusive treatment at work cannot establish that the behavior was
   53  motivated by race, color, sex, national origin, or age, they are
   54  unlikely to be protected by law against such mistreatment.
   55         (f) Legal protection from abusive work environments should
   56  not be limited to behavior grounded in protected class status as
   57  provided for under employment discrimination statutes.
   58         (g) Existing workers’ compensation plans and common-law
   59  tort actions are inadequate to discourage this behavior or to
   60  provide adequate relief to employees who have been harmed by
   61  abusive work environments.
   62         (2) PURPOSE.—It is the purpose of this act to:
   63         (a) Provide legal relief for employees who have been harmed
   64  psychologically, physically, or economically by being
   65  deliberately subjected to abusive work environments.
   66         (b) Provide legal incentive for employers to prevent and
   67  respond to abusive mistreatment of employees at work.
   68         Section 3. Part III of chapter 448, Florida Statutes,
   69  consisting of ss. 448.30-448.37, is created to read:
   70                              PART III                             
   71                      ABUSIVE WORK ENVIRONMENTS                    
   72         448.30 Definitions.—As used in this part, the term:
   73         (1) “Abusive conduct” means conduct, including acts or
   74  omissions that a reasonable person would find hostile based on
   75  the severity, nature, and frequency of the defendant’s conduct.
   76  Abusive conduct may include, but is not limited to, repeated
   77  verbal abuse, such as the use of derogatory remarks, insults,
   78  and epithets; verbal or physical conduct of a threatening,
   79  intimidating, or humiliating nature; the sabotage or undermining
   80  of an employee’s work performance; or attempts to exploit an
   81  employee’s known psychological or physical vulnerability. A
   82  single act normally will not constitute abusive conduct, but an
   83  especially severe and egregious act may be found to meet this
   84  standard.
   85         (2) “Abusive work environment” means a work environment
   86  that exists when an employer, acting with malice, subjects an
   87  employee to abusive conduct so severe that it causes tangible
   88  harm to the employee.
   89         (3) “Adverse employment action” includes, but is not
   90  limited to, a termination, demotion, unfavorable reassignment,
   91  failure to promote, disciplinary action, reduction in
   92  compensation, or a constructive discharge.
   93         (4) “Constructive discharge” exists where:
   94         (a) An employee reasonably believed he or she was subjected
   95  to abusive conduct;
   96         (b) The employee resigned because of the abusive conduct;
   97  and
   98         (c) Before resigning, the employee brought to the
   99  employer’s attention the abusive conduct and the employer failed
  100  to take reasonable steps to correct the situation.
  101         (5) “Employer” includes every employer, public or private.
  102         (6) “Malice” means the desire to cause pain, injury, or
  103  distress to another person.
  104         (7) “Physical harm” means the material impairment of a
  105  person’s physical health or bodily integrity, as established by
  106  competent evidence.
  107         (8) “Psychological harm” means the material impairment of a
  108  person’s mental health, as established by competent evidence.
  109         (9) “Tangible harm” means psychological harm or physical
  110  harm.
  111         448.31 Unlawful employment practices.—
  112         (1) It is an unlawful employment practice under this part
  113  to subject an employee to an abusive work environment.
  114         (2) It is an unlawful employment practice under this part
  115  to retaliate in any manner against an employee who has opposed
  116  any unlawful employment practice under this part or who has made
  117  a charge, testified, assisted, or participated in any manner in
  118  an investigation or proceeding under this part, including, but
  119  not limited to, internal complaints and proceedings, arbitration
  120  and mediation proceedings, and legal actions.
  121         448.32 Employer liability and defense.—
  122         (1) An employer is vicariously liable for an unlawful
  123  employment practice committed by an employee.
  124         (2) If the alleged unlawful employment practice does not
  125  include an adverse employment action, it is an affirmative
  126  defense for an employer only that:
  127         (a) The employer exercised reasonable care to prevent and
  128  promptly corrected any actionable behavior.
  129         (b) The complainant employee unreasonably failed to take
  130  advantage of appropriate preventive or corrective opportunities
  131  provided by the employer.
  132         448.33 Employee liability and defense.—
  133         (1) An employee may be individually liable for an unlawful
  134  employment practice.
  135         (2) It is an affirmative defense for an employee only that
  136  the employee committed an unlawful employment practice at the
  137  direction of the employer under threat of an adverse employment
  138  action.
  139         448.34 Affirmative defenses.—It is an affirmative defense
  140  that:
  141         (1) The complaint is based on an adverse employment action
  142  reasonably made for poor performance, misconduct, or economic
  143  necessity;
  144         (2) The complaint is based on a reasonable performance
  145  evaluation; or
  146         (3) The complaint is based on a defendant’s reasonable
  147  investigation about potentially illegal or unethical activity.
  148         448.35 Relief.—
  149         (1) GENERALLY.—If a defendant has been found to have
  150  committed an unlawful employment practice under this part, the
  151  court may enjoin the defendant from engaging in the unlawful
  152  employment practice and may order any other relief that is
  153  deemed appropriate, including, but not limited to,
  154  reinstatement, removal of the offending party from the
  155  complainant’s work environment, back pay, front pay, payment of
  156  medical expenses, compensation for emotional distress, punitive
  157  damages, and attorney fees.
  158         (2) EMPLOYER LIABILITY.—If an employer has been found to
  159  have committed an unlawful employment practice under this part
  160  which did not culminate in an adverse employment action, the
  161  employer’s liability for damages for emotional distress may not
  162  exceed $25,000, and the employer is not subject to punitive
  163  damages. This subsection does not apply to individually named
  164  employee defendants.
  165         448.36 Procedures.—
  166         (1) PRIVATE RIGHT OF ACTION.—This part may be enforced
  167  solely by a private right of action.
  168         (2) TIME LIMITATIONS.—Notwithstanding any other provision
  169  of law, an action under this part must be commenced no later
  170  than 1 year after the last act that constitutes the alleged
  171  unlawful employment practice.
  172         448.37 Effect on other legal relationships.—The remedies
  173  provided in this part are in addition to any remedies provided
  174  under any other law, and nothing in this part relieves a person
  175  from any liability, duty, penalty, or punishment provided by any
  176  other law, except that if an employee receives workers’
  177  compensation for medical costs for the same injury or illness
  178  under this part and chapter 440, or compensation under this part
  179  and chapter 440 in cash payments for the same period of time of
  180  not working as a result of the compensable injury or illness or
  181  the unlawful employment practice, all compensation received
  182  under chapter 440 shall be reimbursed from compensation paid
  183  under this part.
  184         Section 4. Subsection (18) is added to section 1002.42,
  185  Florida Statutes, to read:
  186         1002.42 Private schools.—
  187         (18) CAMPUS SECURITY.—Each school serving K-12 students
  188  must provide for the screening with metal detectors of all
  189  nonemployee persons entering areas in its school building or
  190  campus where instructional activities for such students take
  191  place.
  192         Section 5. Subsection (7) is added to section 1006.07,
  193  Florida Statutes, to read:
  194         1006.07 District school board duties relating to student
  195  discipline and school safety.—The district school board shall
  196  provide for the proper accounting for all students, for the
  197  attendance and control of students at school, and for proper
  198  attention to health, safety, and other matters relating to the
  199  welfare of students, including:
  200         (7) CAMPUS SECURITY.—Screening with metal detectors all
  201  nonemployee persons entering areas in each school building or
  202  campus where instructional activities take place.
  203         Section 6. This act shall take effect July 1, 2015.