HB 2591 Text

H. B. 2591

          (By Delegates Longstreth, Caputo, Manypenny, Manchin, Ferro, Poling, D., Eldridge and Fleischauer)

          [Introduced February 21, 2013; referred to the
Committee on Energy, Industry and Labor, Economic Development and Small Business then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-27-1, §5-27-2, §5-27-3, §5-27-4, §5-27-5, §5-27-6, §5-27-7, §5-27-8, §5-27-9 and §5-27-10, all relating to creating the Healthy Workplace Act; legislative findings and purpose; definitions; unlawful employment practices; employer liability and defense; affirmative defenses; relief procedures through private right of action; injunction; damages, compensatory and punitive;          attorney fees; time limitations; providing that article does not supersede rights and obligations provided under collective bargaining laws and rules; prohibiting receipt of damages under this article and workers' compensation benefits for same time period; and requiring reimbursement.
Be it enacted by the Legislature of West Virginia:
     That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-27-1, §5-27-2, §5-27-3, §5-27-4, §5-27-5, §5-27-6, §5-27-7, §5-27-8, §5-27-9 and §5-27-10, all to read as follows:
ARTICLE 27. HEALTHY WORKPLACE ACT.
§5-27-1. Legislative findings.
_____The Legislature finds that:
_____(a) The social and economic well-being of the state is dependent upon healthy and productive employees;
_____(b) At least one third of all employees will directly experience health-endangering workplace bullying, abuse and harassment during their working lives and this form of mistreatment is approximately four times more prevalent than sexual harassment alone;
_____(c) Workplace bullying, mobbing and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease and symptoms consistent with post-traumatic stress disorder;
_____(d) Abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates and increases in medical and workers' compensation claims;
_____(e) If mistreated employees, who have been subjected to abusive treatment at work cannot establish that the behavior was motivated by race, color, sex, sexual orientation, national origin or age,they are unlikely to be protected by the law against such mistreatment;
_____(f) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as that provided for under employment discrimination statutes; and
_____(g) Existing workers' compensation plans and common-law tort actions are inadequate to discourage this behavior or to provide adequate relief to employees who have been harmed by abusive work environments.
§5-27-2. Purpose.
_____It is the purpose of this article:
_____(a) To provide legal relief for employees who have been harmed, psychologically, physically or economically by deliberate exposure to abusive work environments; and
_____(b) To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.
§5-27-3. Definitions.
_____(a) "Abusive conduct" includes acts, omissions or both acts or omissions, that a reasonable person would find abusive, based on the severity, nature and frequency of the conduct. Abusive conduct may include, but is not limited to: (1) Repeated verbal abuse such as the use of derogatory remarks, insults and epithets; (2) verbal, nonverbal or physical conduct of a threatening, intimidating or humiliating nature; or (3) the sabotage or undermining of an employee's work performance. It is considered an aggravating factor that the conduct exploited an employee's known psychological or physical illness or disability.
_____(b) "Abusive work environment" exists when an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both physical harm and psychological harm.
_____(c) "Adverse employment action" includes, but is not limited to, a termination, demotion, unfavorable reassignment, failure to promote, disciplinary action or reduction in compensation.__
_____(d) "Constructive discharge" is considered a termination and, therefore, an adverse employment action within the meaning of this article. A constructive discharge for purposes of this article exists where: (1) The employee reasonably believed he or she was subjected to an abusive work environment; (2) the employee resigned because of that conduct; and (3) the employer was aware of the abusive conduct prior to the resignation and failed to stop it.
_____(e) "Psychological harm" is the impairment of a person's mental health, as established by competent evidence.
_____(f) "Physical harm" is the impairment of a person's physical health or bodily integrity, as established by competent evidence.
§5-27-4. Unlawful Employment Practices.
_____It is an unlawful employment practice under this article to subject an employee to an abusive work environment as defined by this article.
_____It is an unlawful employment practice under this article to retaliate in any manner against an employee who has opposed any unlawful employment practice under this article, or who has made a charge, testified, assisted or participated in any manner in an investigation or proceeding under this article, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings and legal actions.
§5-27-5. Employer Liability and Defense.
_____An employer is vicariously liable for an unlawful employment practice, as defined by this article, committed by its employee. Where the alleged unlawful employment practice does not include an adverse employment action, it is an affirmative defense for an employer only that:
_____(a) The employer exercised reasonable care to prevent and correct promptly any actionable behavior; and
_____(b) The complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.
§5-27-6. Employee Liability and Defense.
_____An employee may be individually liable for an unlawful employment practice as defined by this article.
_____It is an affirmative defense for an employee only that the employee committed an unlawful employment practice as defined in this article at the direction of the employer, under actual or implied threat of an adverse employment action.
§5-27-7. Affirmative Defenses.
_____It is an affirmative defense that:
_____(a) The complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity; or,
_____(b) The complaint is based on a reasonable performance evaluation; or
_____(c) The complaint is based on an employer's reasonable investigation about potentially illegal or unethical activity.
§5-27-8. Relief; injunction; damages, compensatory and punitive; __attorney fees; limitations.
_____Where a party is liable for an unlawful employment practice under this article, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is determined appropriate, including, but not limited to, reinstatement, removal of the offending party from the complainant's work environment, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages and attorney's fees.
_____Where an employer is liable for an unlawful employment practice under this article that did not include an adverse employment action, emotional distress damages and punitive damages may be awarded only when the actionable conduct was extreme and outrageous. This limitation does not apply to individually named employee defendants.
§5-27-9. Private right of action; time limitations.
_____This article may be enforced solely by a private right of action. An action under this article must be commenced no later than one year after the last act that constitutes the alleged unlawful employment practice.
§5-27-10. Effect on other legal relationships; prohibitions; and __reimbursements.
_____This article does not supersede rights and obligations provided under collective bargaining laws and rules.
The remedies provided in this article are in addition to any remedies provided under any other law. Nothing in this article relieves any person from any liability, duty, penalty or punishment provided by any other law: Provided, That if an employee receives workers' compensation for medical costs for the same injury or illness pursuant to this article and the workers' compensation law, the payments of workers' compensation shall be reimbursed from compensation paid under this article.

     NOTE: The purpose of this bill is to create the Healthy Workplace Act to provide legal relief for employees who have been harmed, psychologically, physically or economically by deliberate exposure to abusive work environments and legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.

     This article is new; therefore it has been completely underscored.

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