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Workplace Anti-Bullying Bill Considered By Wisconsin Legislature, Part I

Wisconsin legislators are considering enactment of a bill, 2009 Assembly Bill 894, that prohibits workplace bullying by employers. The bill seeks to prohibit abusive work environments in Wisconsin, and to allow a worker subjected to such an environment to bring a civil legal claim. Importantly, a civil claim would be filed in a Wisconsin county court, as opposed to federal court or an administrative agency like the Wisconsin Equal Rights Division or EEOC (i.e. agencies that handle discrimination complaints). This post summarizes the bill, its legal requirements, its potential benefits for WI employees, and potential liabilities for employers.

  • Prohibited Employer Conduct: Abusive Conduct that Causes An Employee Tangible Harm. The bill prohibits Wisconsin employers from directing "Abusive conduct" toward any employee that causes the employee "Tangible harm." (When an employee is subjected to abusive conduct that causes tangible harm, this constitutes the so-named "Abusive work environment" that would be legally prohibited- if the abusive conduct is an isolated event and not severe, or if the abusive conduct does not cause tangible harm to an employee, there would be no legally-actionable "Abusive work environment").
    • "Abusive conduct" is defined to include "repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets; verbal or physical conduct that is threatening, intimidating, or humiliating; sabotage or undermining of an employee's work performance; or exploitation of an employee's known psychological or physical vulnerability."
    • "Abusive conduct," according to the bill, "does not include a single act unless that act is especially severe or egregious."
    • Abusive conduct is legally prohibited, and provides basis for a legal claim, if it causes any employee to suffer "tangible harm."
    • "Tangible harm" is defined as "any material impairment of a person's physical or mental health or bodily integrity." (In other words, an employee found to be unlawfully abused would likely have shown medical evidence of physical or psychological injuries- e.g. medical records showing conditions such as anxiety diagnosis, heart problems, etc., that a health professional attributes to the employer's abuse).
  • Retaliation is also prohibited. An employee can bring a legal claim if the employer retaliated against the employee because he or she:
    • opposed an unlawful employment practice (e.g. the employee was fired because she told the employer she opposed its abusive conduct toward other employees);
    • initiated, testified in, assisted in, or otherwise "participated in an investigation, action, or proceeding to enforce a right under this section, including any internal investigation or proceeding, any mediation or arbitration proceeding, or any court action."
  • One-Year Deadline/Statute of Limitations. There is a one-year deadline for an employee to bring a legal claim. This deadline period starts ticking "one year after the last act constituting the unlawful employment practice occurred or be barred." (From this language, it appears this would be a continuing-violation type claim, in which a complaint timely filed within one year of the last act would claw back to cover prior associated/continuous acts).
  • Relief/Legal Awards. Relief (legal awards) to an employee could include:
    • The court enjoining the employer or abuser-employees from engaging in abusive practices;
    • reinstatement of the aggrieved employee who had been subject to abuse and discharge/demotion/etc.;
    • removal of the person who engaged in the abusive conduct giving rise to the unlawful employment practice from the aggrieved employee's work area;
    • medical expenses;
    • back pay;
    • front pay;
    • compensation for emotional distress;
    • punitive damages; and
    • reasonable costs and attorney fees.
  • Personal Liability. Abusive employees could be sued in their personal capacity, along with the employer, although there are potential limitations and affirmative defenses (see below).
  • Affirmative Defenses. Accused employers and accused abuser-employees would have affirmative defenses to avoid or reduce liability. These include affirmative defenses:
    • where the employer exercised reasonable care to prevent and promptly correct the abusive conduct at issue;
    • where the aggrieved employee unreasonably failed to take advantage of appropriate opportunities provided by the employer to prevent or correct that abusive conduct;
    • where an adverse employment action against the aggrieved employee (e.g. discharge) and the employee's complaint is actually based on poor performance, a reasonable performance evaluation, misconduct, economic necessity, and/or a reasonable investigation of a potentially illegal or unethical activity by the employee;
    • where an employee who is alleged to have engaged in an unlawful employment practice (e.g. a manager accused of abusive conduct) may plead as an affirmative defense that the employee engaged in that practice at the direction of the employer under threat of an adverse employment action against the employee for not engaging in that practice. (This particular affirmative defense would help the accused abusive-employee avoid personal liability, but would not help the employer giving abusive directives to avoid liability).
  • Right to Jury? It appears that claims and relief could be decided by a judge rather than a jury, given the bill's frequent references to a "court" deciding relief.
  • Limited Relief Where No Adverse Employment Action. If an abused employee, despite suffering "tangible harm," does not also suffer "an adverse employment action" (namely, discharge, demotion, suspension, or other form of pay loss), then "the employer's liability for compensation for emotional distress may not exceed$25,000 and the employer is not liable for punitive damages."
  • No Preemption By Workers Comp Laws. The bill explicitly says that workers comp law would not preempt (block) these new bullying-law claims; workers comp law has, in general, traditionally barred other (non-workers comp) claims involving emotional or physical injuries caused by work or by an employer. The new WI anti-bullying-law claims could be pursued along with a WI workers comp claim, although the award for the anti-bullying claim could be reduced based on a workers comp award. This would limit double-dipping that could have otherwise resulted from pursuing both types of claims/legal theories.

This completes the summary of the bill. I will post a second article (Part II) that speculates about the real-world effects of this bill were it to become law.

DISCLAIMER: The information in this blog is not legal advice, nor does it establish an attorney-client relationship between you and Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney (and an employment attorney for employment matters).

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