As many in the Human Resources field are undoubtedly aware, California Governor Jerry Brown recently signed into law Assembly Bill 2053, which adds a new educational requirement to the existing training required by Assembly Bill 1825 (commonly known as California’s Harassment Training Law).
Under existing California Law, employers with 50 or more employees must provide at least two hours of sexual harassment training to supervisors, and the requirements of the law are set forth in Government Code section 12950.1.
Assembly Bill 2053, which takes effect January 1, 2015, amends Government Code section 12950.1, and requires employers who are subject to the sexual harassment law to continue complying with the requirements of the law, but also “include prevention of abusive conduct as a component of the training and education . . .”
What is “abusive” conduct according to AB 2053?
AB 2053 defines “abusive conduct” as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”
Abusive Conduct may include the following:
- Verbally abusing someone by yelling or screaming at them
- Repeated demeaning and degrading verbal remarks that "put down" or make employees feel subhuman
- Humiliating others through public criticism, gossip or ridicule
- Denigrating the work standards or achievements of others
- Intentionally destroying an employee’s work product such that the individual receives punishment or reprimand
- Work sabotage through misinformation or by giving impossible deadlines
- Not giving credit
- Isolation from opportunities, information, and interaction with others
- Physical contact with a co-worker such as pushing, blocking, or hitting, etc.
- Throwing books, chairs, stacks of paper, or other “conduct” that a reasonable person would find intimidating
- Stealing files, personal affects, or office supplies
Importantly, the definition specifically states that unless the conduct is especially severe and egregious, a single act does not usually constitute abusive conduct.
Does the New Law Create a Cause of Action for Abusive Conduct?
No. While allowing abusive conduct to persist within the workplace may be a poor management strategy or bad for business, nothing in the new law makes this type of conduct illegal at this time. We cannot predict whether there will be a law in the coming years that will indeed create a cause of action for abusive conduct (and the language in the law certainly would allow one to speculate that this is the case) For the time being, employers subject to AB 1825 must merely educate their supervisors as to what abusive conduct is (and ideally to prevent it).
From a practical perspective it will be difficult (albeit not impossible given the nature of some judges within the state and federal courts) for a court to draw the line between what is and is not abusive conduct. However, what is likely is that those businesses who choose not to implement the educational requirement of AB 2053 could be subject to a cause of action similar to a California “failure to prevent” harassment claim. We stress that at this time there is nothing on the books creating this sort of action against the employer, but it is not a stretch to see how the plaintiff’s bar will use this sort of statute to their advantage.
Finally, although the new law is unclear as to whether employers who are current on their mandated California sexual harassment training must re-train to include information about abusive conduct in the workplace, it is clear that any employers planning on conducting sexual harassment training going forward should be sure to include this information just to remain on the safe side.
Syntrio, Inc. specializes in providing Ethics and HR compliance training. Contact us today at 888-289-6670 for a discussion on how we can help you and your business.
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