Florida Senate - 2013 SB 308 By Senator Braynon 36-00604-13 2013308__ 1 A bill to be entitled 2 An act relating to abusive workplace environments; 3 creating the “Abusive Workplace Environment Act”; 4 providing legislative findings and purposes for the 5 act; defining terms; prohibiting a public employer 6 from subjecting his or her employee to an abusive 7 workplace environment; declaring that an employer 8 violates the act if he or she subjects an employee to 9 an abusive workplace environment or has knowledge that 10 any person has subjected an employee of the employer 11 to an abusive workplace environment and has failed to 12 exercise reasonable care to prevent and promptly 13 correct the abusive conduct; prohibiting an employer 14 from retaliating in any manner against an employee 15 because the employee has opposed an unlawful 16 employment practice or has made a charge, testified, 17 assisted, or participated in any manner in an 18 investigation or proceeding; providing that an 19 employer may assert an affirmative defense against the 20 employee under certain circumstances; providing that 21 an employee may be individually liable if he or she 22 commits an unlawful employment practice; providing 23 that an employee may assert an affirmative defense 24 against an employee or employer under certain 25 circumstances; providing that a violation of the act 26 may be enforced solely by a private right of action; 27 requiring that a civil action filed under the act must 28 be commenced no later than 1 year after the date of 29 the last incident that is part of the alleged unlawful 30 employment practice; providing that if a person is 31 found to have committed an unlawful employment 32 practice that culminated in an adverse employment 33 action, the court may enjoin the person from engaging 34 in the unlawful employment practice and may order any 35 other relief that it deems appropriate, including 36 punitive damages and attorney fees; providing that if 37 an employer has been found to have committed an 38 unlawful employment practice, but the act did not 39 culminate in an adverse employment action, the 40 employer is liable for damages for emotional distress 41 but is not subject to punitive damages; providing that 42 the remedies provided by the act are cumulative to 43 other laws; providing for an exception for workers’ 44 compensation awards; providing an effective date. 45 46 Be It Enacted by the Legislature of the State of Florida: 47 48 Section 1. Abusive workplace environment.— 49 (1) SHORT TITLE.—This section may be cited as the “Abusive 50 Workplace Environment Act.” 51 (2) LEGISLATIVE FINDINGS AND PURPOSE.— 52 (a) The Legislature finds that: 53 1. The social and economic well-being of the state is 54 dependent upon healthy and productive employees. 55 2. Approximately one-half of all employees directly 56 experience health-endangering workplace bullying, abuse, and 57 harassment, and this mistreatment is approximately four times 58 more prevalent than sexual harassment. 59 3. Workplace bullying and harassment can inflict serious 60 harm upon targeted employees, including feelings of shame and 61 humiliation, severe anxiety, depression, suicidal tendencies, 62 impaired immune systems, hypertension, increased risk of 63 cardiovascular disease, and symptoms consistent with 64 posttraumatic stress disorder. 65 4. An abusive workplace environment can have serious 66 consequences for employers, including reduced employee 67 productivity and morale, higher turnover and absenteeism rates, 68 and increases in medical and workers’ compensation claims. 69 5. If a mistreated employee who has been subjected to 70 abusive treatment at work cannot establish that the abusive 71 behavior was motivated by race, color, sex, national origin, or 72 age, he or she is unlikely to be protected by the law against 73 such mistreatment. 74 6. Unlike employment discrimination statutes, legal 75 protection from abusive workplace environments should not be 76 limited to behavior grounded in protected-class status. 77 7. Existing workers’ compensation provisions and common law 78 tort actions fall short of those necessary to eliminate abusive 79 behavior or to provide adequate relief to employees who have 80 been harmed by an abusive workplace environment. 81 (b) The purpose of this section is to provide: 82 1. Legal relief to employees who have been harmed, 83 psychologically, physically, or economically, by being 84 deliberately subjected to an abusive workplace environment; and 85 2. Incentives for employers to prevent and respond to 86 abusive mistreatment of employees at work. 87 (3) DEFINITIONS.—As used in this section, the term: 88 (a) “Abusive conduct” means a pattern of behavior or a 89 single act of an employer or employee in the workplace which is 90 performed with malice and is unrelated to an employer’s 91 legitimate business and which a reasonable person would find 92 hostile or offensive considering the severity, nature, and 93 frequency of the conduct or the severity and egregiousness of 94 the conduct. Abusive conduct includes, but is not limited to: 95 1. Repeated infliction of verbal abuse, such as the use of 96 derogatory remarks, insults, and epithets; 97 2. Verbal or physical conduct that a reasonable person 98 would find threatening, intimidating, or humiliating; 99 3. Sabotaging or undermining a person’s work performance; 100 or 101 4. Attempting to exploit an employee’s known psychological 102 or physical vulnerability. 103 (b) “Abusive workplace environment” means an environment in 104 which an employee is subjected to abusive conduct that is so 105 severe that it causes physical or psychological harm to the 106 employee. 107 (c) “Adverse employment action” means an employment action, 108 including, but not limited to, termination of the employee, 109 demotion or unfavorable reassignment of the employee, failure to 110 promote the employee, disciplinary action against the employee, 111 or a reduction in the compensation of the employee. 112 (d) “Conduct” means all forms of behavior, including acts 113 and omission of acts. 114 (e) “Employee” means an individual who is employed by an 115 employer. 116 (f) “Employer” means a state agency or any county, 117 municipality, political subdivision, school district, community 118 college, or state university. 119 (g) “Malice” means the desire to see another person suffer 120 psychological, physical, or economic harm, without legitimate 121 cause or justification, which is demonstrated by the presence of 122 factors such as outward expressions of hostility, harmful 123 conduct inconsistent with an employer’s legitimate business 124 interest, a continuation of harmful, illegitimate conduct after 125 a person requests that it cease or demonstrates outward signs of 126 emotional or physical distress as a result of the conduct, or 127 attempts to exploit a person’s known psychological or physical 128 vulnerability. 129 (h) “Physical harm” means the material impairment of a 130 person’s physical health or bodily integrity, as established by 131 competent evidence. 132 (i) “Psychological harm” means the material impairment of a 133 person’s mental health, as established by competent evidence. 134 (4) UNLAWFUL EMPLOYMENT PRACTICES.— 135 (a) An employer may not subject an employee to an abusive 136 workplace environment. 137 (b) An employer may not retaliate in any manner against an 138 employee because the employee has opposed an unlawful employment 139 practice under this section, or has made a charge, testified, 140 assisted, or participated in any manner in an investigation or 141 proceeding under this section, including, but not limited to, 142 internal complaints and proceedings, arbitration and mediation 143 proceedings, or legal actions. 144 (5) EMPLOYER LIABILITY AND DEFENSE.— 145 (a) An employer violates this section if the employer 146 subjects an employee to an abusive workplace environment or has 147 knowledge that any person has subjected an employee to an 148 abusive workplace environment and has failed to exercise 149 reasonable care to prevent and promptly correct the abusive 150 conduct. 151 (b) If the alleged unlawful employment practice does not 152 include an adverse employment action, the employer may assert an 153 affirmative defense that: 154 1. The employer exercised reasonable care to prevent or 155 promptly correct any actionable behavior; and 156 2. The complainant employee unreasonably failed to take 157 advantage of appropriate preventive or corrective opportunities 158 provided by the employer. 159 (6) EMPLOYEE LIABILITY AND DEFENSE.— 160 (a) An employee may be individually liable for an unlawful 161 employment practice against another employee. 162 (b) The employee may assert an affirmative defense that: 163 1. The employee committed the unlawful employment practice 164 at the direction of the employer, under threat of an adverse 165 employment action; 166 2. The complaint is based on an adverse employment action 167 reasonably made for poor performance, misconduct, or economic 168 necessity; 169 3. The complaint is based on a reasonable performance 170 evaluation; or 171 4. The complaint is based on a defendant’s reasonable 172 investigation into potentially illegal or unethical activity. 173 (7) PROCEDURES.— 174 (a) This section may be enforced solely by a private right 175 of action. 176 (b) A civil action filed under this section must be 177 commenced no later than 1 year after the date of the last 178 incident that is part of the alleged adverse employment action. 179 (8) RELIEF FOR THE EMPLOYEE.— 180 (a) If a person or employer has been found to have 181 committed an unlawful employment practice under this section 182 which culminated in an adverse employment action, the court may 183 enjoin the person from engaging in the unlawful employment 184 practice and may order any other relief the court deems 185 appropriate, including, but not limited to, reinstatement of the 186 employee, removal of the offending party from the complainant’s 187 work environment, back pay, front pay, medical expenses, 188 compensation for emotional distress, punitive damages, and 189 attorney fees. 190 (b) If a person or employer has been found to have 191 committed an unlawful employment practice under this section 192 which did not culminate in an adverse employment action, the 193 employer is liable for damages not to exceed $25,000 for 194 emotional distress and may not be held liable for punitive 195 damages. This paragraph does not apply to individually named 196 employee defendants. 197 (9) CUMULATIVE REMEDIES; REIMBURSEMENT REQUIRED.— 198 (a) The remedies provided in this section are in addition 199 to any other remedy provided under law. 200 (b) This section does not relieve any person from any other 201 statutory liability, duty, penalty, or punishment. 202 (c) If an employee receives workers’ compensation for 203 medical costs for the same injury or illness pursuant to both 204 this section and the Workers’ Compensation Act, or compensation 205 in cash payments under both this section and the Workers’ 206 Compensation Act for the same period of time the employee is not 207 working as a result of the compensable injury or illness or the 208 unlawful employment practice, the payments of workers’ 209 compensation shall be reimbursed from compensation paid under 210 this section. 211 Section 2. This act shall take effect July 1, 2013.