2018 -- S 2471 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- HEALTHY WORKPLACE

     Introduced By: Senators Ciccone, Calkin, Goldin, Euer, and Nesselbush

     Date Introduced: February 15, 2018

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 28 of the General Laws entitled "LABOR AND LABOR

RELATIONS" is hereby amended by adding thereto the following chapter:

CHAPTER 52.1

THE HEALTHY WORKPLACE ACT OF 2018

     28-52.1-1. Short title.

     This act shall be known and may be cited as "The Healthy Workplace Act of 2018".

     28-52.1-2. Definitions.

     (a) For the purposes of this chapter:

     (1) "Abusive conduct" means and includes acts, omissions, or both, 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:

     (i) Repeated verbal abuse such as the use of derogatory remarks, insults, epithets;

     (ii) Verbal, or nonverbal, or physical conduct of a threatening, intimidating, or

humiliating nature; or

     (iii) The sabotage or undermining of an employee's work performance.

     (iv) Sexual harassment as defined in § 28-51-1(b).

     (v) It shall be considered an aggravating factor that the conduct exploited an employee's

known psychological or physical illness or disability. A single act normally will not constitute

abusive conduct, but an especially severe and egregious act may meet this standard.

     (2) "Abusive work environment" means and exists when an employer or one or more of

its employees, acting with intent to cause pain and distress to an employee, subjects that

employee to abusive conduct that causes physical and/or, psychological harm.

     (3) "Adverse employment action" means and includes, but is not limited to, a termination,

demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction in

compensation.

     (4) "Constructive discharge" means and shall be considered a termination, and therefore,

and adverse employment action within the meaning of this chapter. A constructive discharge for

purposes of this chapter exists where:

     (i) The employee reasonably believed they were subjected to an abusive work

environment;

     (ii) The employee resigned because of that conduct; and

     (iii) The employer was aware of the abusive conduct prior to the resignation and failed to

stop it.

     (5) "Physical harm" means the impairment of a person's physical health or bodily

integrity, as established by competent evidence.

     (6) "Psychological harm" means the impairment of a person's mental health, as

established by competent evidence.

     28-52.1-3. Unlawful employment practices.

     (a) It shall be an unlawful employment practice under this chapter to subject an employee

to an abusive work environment as defined in § 28-52.1-2.

     (b) It shall be an unlawful employment practice under this chapter to retaliate in any

manner against an employee who has opposed any unlawful employment practice under this

chapter, who has made a charge, testified, assisted, or who has participated in any manner in an

investigation or proceeding under this chapter, including, but not limited to, internal complaints

and proceedings, arbitration and mediation proceedings, and legal actions.

     28-52.1-4. Employer liability and defense.

     (a) An employer shall be vicariously liable for any unlawful employment practice

committed by their employee.

     (b) Where the alleged unlawful employment practice does not include an adverse

employment action, it shall be an affirmative defense for an employer that:

     (1) The employer exercised reasonable care to prevent and promptly correct any

actionable behavior; and

     (2) The complainant employee unreasonably failed to take advantage of appropriate

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preventive or corrective opportunities provided by the employer.

     28-52.1-5. Employee liability and defense.

     (a) An employee may be individually liable for an unlawful employment practice as

defined by this chapter.

     (b) It shall be an affirmative defense for an employee only that the employee committed

an unlawful employment practice as defined by this chapter at the direction of the employer,

under actual or implied threat of an adverse employment action.

     28-52.1-6. Affirmative defenses.

     It shall be an affirmative defense that:

     (1) The complaint is based on an adverse employment action reasonably made for poor

performance, misconduct, or economic necessity; or

     (2) The complaint is based on reasonable performance evaluation; or

     (3) The complaint is based on an employer's reasonable investigation about potentially

illegal or unethical activity.

     28-52.1-7. Relief and limitations on employer liability.

     (a) Relief generally. Where a party is liable for an unlawful employment practice under

this chapter, the court may enjoin the defendant from engaging in the unlawful employment

practice, and may order any other relief that is deemed 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 attorneys' fees.

     (b) Limitations on employer liability. Where an employee is liable for an unlawful

employment practice under this chapter 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.

     28-52.1-8. Private right of action.

     (a) This chapter shall be enforced solely by a private right of action.

     (b) An action under this chapter must be commenced not later than one year after the last

act that constitutes the alleged unlawful employment practice.

     28-52.1-9. Effect on other legal relationships.

     (a) This chapter does not supersede any rights and obligations provided under collective

bargaining laws and regulations.

     (b) The remedies provided in this chapter shall be in addition to any remedies provided

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under any other law, and nothing in this chapter shall relieve any person from any liability, duty,

penalty or punishment provided by any other law, except that if an employee receives workers'

compensation for medical costs for the same injury or illness pursuant to both this chapter and the

workers' compensation law, or compensation under both this chapter and that law in cash

payments for the same period of time not working as a result of the compensable injury or illness

or the unlawful employment practice, the payment of workers' compensation shall be reimbursed

from the compensation paid under this chapter.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- HEALTHY WORKPLACE

***

     This act would create the "Healthy Workplace Act of 2018" and would establish a cause

of action against employers and employees for workplace bullying, harassment and other abusive

conduct that is tolerated by employers and which may not fall into other categories already

protected such as race, color and sex or sexual orientation.

     This act would take effect upon passage.

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