Corporate,
Labor/Employment
Jan. 7, 2015
AB 2053: Anti-bullying training becomes reality
As of Jan. 1, 2015, employers of 50 in California or more are subject to a new "anti-bullying" training requirement.
Jennifer Rubin
Member, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
3580 Carmel Mountain Rd
San Diego , CA 92130
Email: jbrubin@mintz.com
Jen is a member of Mintz practicing employment law. She is also a member of the Mintz ESG Practice Group, which focuses on modern board governance issues. She is a co-city chair of the 2020 Women on Boards Leadership Committee for the city of San Diego.
As of Jan. 1, 2015, employers of 50 in California or more are subject to a new "anti-bullying" training requirement. This new law, Assembly Bill 2053, signed into law Sept. 9, 2014, was passed without much fanfare - likely because it appeared to add a straightforward training component to the training curriculum that employers must already provide.
The new law requires employers to add a new training component intended to combat "abusive conduct" in the workplace. "Abusive conduct" is "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 ... 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." The law does not provide for a private right of action or damages; rather, the Department of Labor Standards and Enforcement may seek a court order requiring a covered employer to comply. This doesn't appear to change much, but it creates two potential problems for employers. First, it employs several ambiguous terms. A "derogatory remark" or "insult" to an employee may simply be meaningful feedback to a supervisor. While the law uses the modifier "malice" for prohibited conduct, the term "malice" is a legal term of art that is neither instinctive nor self-defining. The actions necessary to achieve a corporate objective might require a significant number of work hours or infringement on an employee's free time - is it malicious to ask an employee to work hard? Second, there is the possibility that employees could attempt to assert claims against employers for failing to adhere to the now-articulated public policy of a "bully-free" workplace. While workers' compensation laws would bar most direct lawsuits against employers by employees, the Legislature has now opened the door for employees to assert one of the few claims available to an at-will employee: a wrongful discharge claim, which is predicated on a claim that an employer violated a public policy in discharging an employee. Employers should review their training material to ensure the required anti-bullying modules are added. It will then remain to be seen whether these measures will beneficially impact the work environments of Californians or whether the law will create an additional litigation burden for employers.Submit your own column for publication to Diana Bosetti
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