Introduced Version
House Bill 2591 History
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Key: Green = existing Code. Red = new code to be enacted
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.