2023 -- S 0821

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LC002613

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WORKPLACE PSYCHOLOGICAL

SAFETY ACT

     Introduced By: Senators Ciccone, Britto, DiPalma, F. Lombardi, Burke, and Tikoian

     Date Introduced: March 23, 2023

     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 60

WORKPLACE PSYCHOLOGICAL SAFETY ACT

     28-60-1. Short title.

     This chapter shall be known and may be cited as the "Workplace Psychological Safety

Act", addressing workplace psychological abuse (bullying and mobbing) with regard to recognizing

and protecting an employee's right to a psychologically safe work environment.

     28-60-2. Public policy.

     (a) This chapter sets forth a public policy acknowledging and addressing the relevance and

importance of mental health as an integral aspect of human well-being, and therefore, employee

well-being. This chapter also sets forth a public policy against any type of psychological abuse that:

     (1) Violates an employee's right to a physically and psychologically safe work

environment; and

     (2) Injures or has the potential to injure an employee, hinder the performance of an

employee, stigmatize the employee, and/or undermine the dignity of the employee, regardless of

their job category or class.

     (b) Additionally, this chapter declares and reasserts the obligation of employers to keep

their employees and the work environment safe as set forth in laws throughout the state and the

federal government, including the Department of Labor Standards, a part of the Executive Office

of Labor and Workforce Development, U.S. Department of Labor and the U.S. Occupational Safety

and Health Act, which includes psychological safety.

     28-60-3. Purpose.

     It is the purpose of this chapter to:

     (1) Recognize and protect an employee's right not only to a physically safe work

environment but also to a psychologically safe work environment in the workplace.

     (2) Recognize and promote an employer's responsibility to acknowledge, monitor, prevent,

discourage, and adequately address issues or allegations of psychological abuse in the workplace.

     (3) Provide legal incentive for employers to acknowledge, monitor, prevent, discourage,

and adequately address issues or allegations of psychological abuse to eliminate such behaviors

before they disrupt the safety of the work environment and/or cause subsequent harm to employees.

     (4) Provide legal relief and remedy for employees harmed psychologically, emotionally,

physically, professionally, or economically by exposure to an unsafe, toxic work environment,

including any subsequent damages to make employees whole.

     28-60-4. Scope of application.

     This chapter shall apply to all employees regardless of the nature of their job.

     28-60-5. Definitions.

     For the purposes of this chapter, the terms used herein shall have the meanings set forth in

this section:

     (1) "Bullying" means interpersonal abuse that operates employee(s)-to-employee(s),

especially superior(s) to subordinate(s). The perpetrators are individual(s).

     (2) "Employee" means any person who renders services to an employer and receives

compensation for them, including full- and part-time paid employees and independent contractors,

including temporary employees. For purposes of the protection granted under this chapter, the term

employee shall be interpreted broadly.

     (3) "Employer" means a person(s) or entity who obtains services from an employee and

hires employees for any compensation. For purposes of the protection granted under this chapter,

the term employer shall be interpreted broadly, public or private, for profit or not-for-profit.

     (4) "Mobbing" means an interpersonal abuse system that operates employer-to-

employee(s). The perpetrators are the employer and/or its representative employees.

     (5) "Physical injury" means impairment of a person's physical health or bodily integrity as

established by competent evidence and may manifest mentally, emotionally, or physically.

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     (6) "Psychological abuse" means mentally provocative harassment. Mistreatment that has

the effect of hurting, weakening, confusing, or frightening a person mentally or emotionally.

     (i) Behaviors that may constitute psychological abuse include, but are not limited to:

     (A) Covert and/or subtle unethical and unprofessional behavior, directed in a targeted

and/or systematic manner such as sabotage, exclusion, marginalization, misrepresentation of

employee performance or behavior, spreading of lies, discipline that does not follow procedure,

withholding of vital information, behind closed door verbal abuse and/or abusive gestures, frequent

request for work below competence level, inconsistent enforcement of rules, long-term assigning

of tasks beyond the employee's duties without compensation, and behaviors without just cause

consisting of physical isolation, ignoring, regular inconsistent instructions, and unmanageable

workloads;

     (B) Overt and/or blatant unethical and unprofessional behavior directed in a targeted and/or

systematic manner such as undermining, request to take part in illegal activity, public or group

humiliation or degradation, taking credit for work, making snide comments or ridicule publicly,

physically isolating an employee, ignoring, exclusion from work-related social gatherings or

communications, inconsistent following or enforcement of rules, degrading role changes that could

jeopardize future career prospects, placing in dangerous or physically threatening working

conditions, hostile yelling, shouting, or physical gestures and postures, outright physical abuse such

as pushing and shoving, looking into or disclosing of private facts about the employee or their

family, and behaviors without just cause consisting of discounting a person's work proposals or

opinions, persistent criticism, excessive monitoring, unmanageable workloads, threat of dismissal,

removal of job duties, tampering with or spying on equipment or personal belongings, and changing

work conditions or duties;

     (C) Employer non-response and/or prolonged response to employee complaints of

psychologically abusive behavior, rigged internal protocol, unethical communication, i.e.

misrepresenting a complaint process and misrepresenting an investigatory process, hollow

investigations, misrepresenting the findings in subsequent reports, blame shifting, willful blindness

to the bully's continued and escalating behavior, willful deafness to the reporting employee's

request for assistance; and

     (D) Employer failure to provide a safe working environment, failure to acknowledge

employee complaints of abusive behavior, failure to provide a transparent reporting system, failure

to adequately address employee complaints, failure to remove a known stressor(s), failure to alter

and/or stabilize the work environment, willful exacerbation of the reporting employee's work

environment through toleration and proliferation of abusive behavior by representing employees.

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     (7) "Psychological injury" means impairment of a person's mental health as established by

competent evidence and may manifest mentally, emotionally, or physically.

     (8) "Reasonable person" means an unbiased person who displays reason, fairness, caution,

and care.

     (9) ''Representative employee" means administrative employees in leadership and/or

management positions whose responsibility is to oversee and enforce organizational policies

including, but not limited to, CEOs, CFOs, presidents, vice presidents, executive directors,

members of a board of directors, or employees in human resources, legal, or diversity, equity, and

inclusion.

     (10) "Third party" means a neutral person with no prior affiliation with the parties.

     (11) "Toxic work environment" means an intolerable employment condition in which a

reasonable person would find it difficult, uncomfortable, and/or an impossible environment to

perform their workplace duties and tasks.

     28-60-6. Employee right to dignity and a psychologically safe work environment.

     Every employee shall have the right to a work environment that is safe and affords them

the dignity to which all human beings are entitled, free from all forms of psychological abuse.

     28-60-7. Employer responsibility to provide safe work environments and ensure

worker dignity.

     Employers have a general duty to provide a safe work environment free from all forms of

abuse including psychological abuse. Employers have a general duty to ensure that all employees

are treated respectfully and with dignity.

     28-60-8. Prohibited activity.

     (a) It shall be an unlawful employment practice for any employer or employee to engage

in the psychological abuse of another employee during or outside the course or scope of their work

that creates a toxic work environment in which a reasonable person would find intolerable to

perform their regular workplace duties and tasks, has the ability to cause subsequent injury, and/or

jeopardizes future career prospects without just cause. The determination of which shall be

conducted from the view of a reasonable person under the totality of the circumstances, its impact

on the work environment of the employee, and/or its subsequent impact on the employee's well-

being. There is no requirement of extreme, outrageous, or repetitive behavior on the part of the

offender to be unlawful. The creation of a toxic work environment, subsequent injury or potential

injury, and/or damage to future career prospects shall suffice regardless of protected status.

     (b) It shall be an unlawful employment practice to retaliate in any manner against an

employee who has opposed any unlawful employment practices under this chapter, including, but

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not limited to, filing a claim internally or externally on behalf of oneself or another objecting to

behavior in violation of this chapter whether as an complainant, witness, or advocate.

     (c) It shall be an unlawful employment practice to require any complainant under this

chapter to enter into mediation, forced arbitration, a non-disclosure agreement, or any agreement

for the employer to see or review the complainant's medical history not pertinent to the complaint,

unless willingly disclosed and consented to by the complainant.

     (d) Conduct that does not constitute psychological abuse includes, but is not limited to:

     (1) Acts intended to exercise a supervisor's authority to discipline with just cause and

conducted in a progressive disciplinary manner in compliance with policies and laws;

     (2) Demands for protecting the confidentiality of the services provided by the employer;

     (3) The formulation or promulgation of regulations or memoranda to direct the operations,

maximize efficiency, and evaluate employees' performance based on the general objectives of the

employer;

     (4) The temporary assignment of additional duties when necessary to ensure the continuity

of services;

     (5) Administrative actions directed to the completion of an employment agreement, with

cause; and

     (6) Employer's affirmative actions to enforce the provisions of a human resources

regulation, clauses of employment agreements, or obligations, duties, and prohibitions established

by law.

     (e) Concerted activity/Section 7 activity under the National Labor Relations Act as

interpreted by the National Labor Relations Board shall not be construed as psychological abuse.

     28-60-9. Procedure.

     (a) Every employer shall be responsible for taking all reasonable measures to acknowledge,

monitor, prevent, discourage, and adequately address incidents of psychological abuse.

     (b) Every employer shall include this procedure in policies and corrective action plans and

implement and enforce it:

     (1) Adopt and implement preventive and detective internal policies against psychological

abuse, including anti-retaliation policies, within ninety (90) days consistent with this chapter.

Policies should include a broad reporting procedure, including formal and informal reporting

methods, that include an employee's right to make a complaint outside of the employer's internal

reporting procedure.

     (2) Notify and train all managers, supervisors, and other representative employees as to

handling complaints of psychologically abusive behavior, including the employer's reporting

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provisions and policies to acknowledge, monitor, prevent, discourage and adequately address all

such complaints.

     (3) Post employees' rights under this chapter and employer reporting policies in such a

manner that all employees have access, including on the website, bulletin boards, job descriptions,

and in applicable promotional materials. Any employer who fails to notify and train all managers,

supervisors, and other representative employees and post notice of employees' rights under this

chapter shall be subject to fines and penalties by the wage and hour division not to exceed one

hundred dollars ($100) for each separate offense.

     (4) Acknowledge employee complaints of psychologically abusive behavior in writing and

initiate a neutral third-party fact-finding professional investigation within five (5) business days of

a formal or informal complaint of an alleged violation of this chapter unless the danger is imminent

whereby immediate action is called for. Take all steps to assure immediate cessation of the alleged

violation which shall be included in the investigatory report, including removing the instigating

employee who allegedly violated this chapter from working with the complainant if necessary.

Ensure and monitor complainant's safety through separation from the alleged perpetrator during the

investigation and submit weekly written updates of the investigation's progress to the complainant.

     (5) Implement and uphold an effective anti-retaliation provision that guarantees no

retaliation against any employee who has opposed any unlawful practice in a complaint under this

chapter.

     (6) Complete the third-party investigation within thirty (30) business days of the initial

complaint and inform the complainant of its outcome. The investigator shall notify in writing the

complainant of any delay, if reasonable, not to exceed sixty (60) days. The complainant shall agree

on who is chosen as the third-party neutral investigator. The investigator shall not be hired for the

purposes of determining the complainant's legal standing or legal advantages and disadvantages.

     (7) A neutral third-party investigator shall establish whether or not the creation of a toxic

work environment occurred which is the minimum level of damage under this chapter. The

investigator shall also establish whether or not subsequent injury occurred beyond the minimum

level of damage under this chapter.

     (7) When psychological abuse occurs between employees of different employers, all

employers concerned shall be responsible for investigating the allegation of psychological abuse,

regardless of whether or not they are the direct employer of the complainant.

     (9) If the outcome favors the complainant, issue an apology to the employee, reinstate work

if applicable, and coach and/or counsel and/or discipline the employee who violated the chapter.

     (10) If another complaint occurs after coaching and is found in favor of the complainant,

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take the next step in the disciplinary process including removing supervisory duties from the

employee who violated this chapter and/or terminating the employee who violated this chapter.

     (11) Apply evaluation and discipline processes evenly and fairly to all employees.

     (12) Annually perform an anonymous workplace climate survey, with its results to be

submitted to OSHA (private sector employers) and the department of labor and training (public

sector employers) annually.

     (13) Report quarterly the number of employee complaints of abusive behavior, employee

disciplines, workers' compensation claims, absenteeism rates, stress leave rates, attrition rates,

discrimination complaints, investigation rates, follow up action rates, the workforce gender and

racial makeup, and de-identified wage and salary data by protected category to OSHA (private

sector employers) and department of labor and training (public sector employers), who will make

this information publicly available, at a minimum under the Freedom of Information Act.

     (c) If the employer proves to have exercised reasonable care to prevent and promptly

correct the conduct, such employer shall be held harmless from any claim under the provisions of

this chapter. Such immunity shall not be extended to the person who engaged in psychological

abuse in their personal capacity.

     (d) The aggrieved employee shall have the following options to notify the employer of the

complaint without use of the employer's protocol:

     (1) File a restraining order against the employee who violates this chapter dependent upon

applicable state law.

     (2) Report the alleged violation of this chapter internally to initiate an internal investigation

within five (5) days of notification unless the danger is imminent whereby immediate response is

called for.

     (3) Seek outside assistance. File a complaint (the employer will not receive a copy of the

complaint until there is litigation) that discloses the complainant's identity directly and only to

OSHA (private sector employees) or the department of labor and training (public sector

employees). These offices shall:

     (i) Evaluate the conditions described in the complaint.

     (ii) If it is determined that the complaint describes a potential OSHA violation, the case is

assigned to an inspector.

     (iii) Contact the employer in writing and require the employer to respond by a due date

with proof that the hazard has been corrected; or make an appointment for a site visit prioritized

according to the nature of the hazard; or phone or visit the workplace the same day if there is

imminent danger. Issue fines and/or penalties, including legal action, to violators.

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     (iv) Make violations of this chapter available to the public per the Freedom of Information

Act, redacting all private information as to the aggrieved employee, including their name to protect

their privacy and not interfere with future job prospects.

     (v) If applicable, forward the complaint to another agency with jurisdiction.

     (vi) Collect and maintain data on the effectiveness of this chapter as determined by a

decrease in employees self-reporting experiencing psychological abuse at work.

     (vii) The method of funding these offices shall mirror workers' compensation fees. A

premium shall be charged to employers and will increase or decrease with the number of

proven/accepted claims with a penalty assessed:

     (A) Employers grossing more than one million dollars ($1,000,000) annually are taxed

fifteen hundredths percent (0.015%) on earnings each quarter or minimum of fifteen thousand

dollars ($15,000) annually.

     (B) Employers grossing five hundred thousand dollars ($500,000) up to nine hundred

ninety-nine thousand nine hundred ninety-nine dollars ($999,999) annually are taxed ten

hundredths percent (0.010%) on earnings quarterly with a maximum of ten thousand dollars

($10,000) annually.

     (C) Employers grossing two hundred thousand dollars ($200,000) up to four hundred

ninety-nine thousand nine hundred ninety-nine dollars ($499,999) annually are taxed five

thousandths percent (0.005%) on earnings quarterly with a maximum of two thousand five hundred

dollars ($2,500) annually.

     (D) Employers who have two (2) employees, the owner and at least one other employee,

grossing less than one hundred ninety-nine thousand nine hundred ninety-nine dollars ($199,999)

annually are taxed two thousandths percent (0.002%) on earnings quarterly with a maximum of

four hundred dollars ($400) annually.

     (viii) Since state antidiscrimination commissions and the EEOC do not routinely take part

in the investigation of cases, the EEOC and state antidiscrimination commissions shall not be

designated with oversight unless the scope of these agencies change.

     (4) Sue the employer and/or individual(s) in violation of this chapter directly through the

judicial branch.

     28-60-10. Employer liability.

     Any employer that allows, engages in, or promotes psychological abuse whereby creating

a toxic work environment shall be liable to the affected employee(s).

     Every employer shall:

     (1) Be liable for failing to take the appropriate measures to provide employees with a

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psychologically safe work environment as outlined in this chapter.

     (2) Be liable for engaging in any violation of this chapter.

     (3) Be liable for any damages, including economic, compensatory, and punitive damages,

to any employee who has been subjected to work in a toxic work environment as outlined in this

chapter in the scope of their employment unless the employer can demonstrate they have met all

elements of the affirmative defense provided in §§ 28-60-9(c) and 28-60-13. An employee is

entitled to recover the greater of all actual damages or five thousand dollars ($5,000) for each

violation of this chapter.

     (4) Be strictly liable for all damages, including economic, compensatory, and punitive

damages, resulting from any prohibited behaviors of this chapter carried out by a supervisor or

representative employee of such employer.

     (5) If not prevailing, be liable for the plaintiff's reasonable attorneys' and witnesses' fees

and costs. A prevailing employer shall not be awarded fees and costs.

     28-60-11. Individual liability.

     (a) Any employee, representative or otherwise, who knowingly allows, engages in, or

promotes psychological abuse creating a toxic work environment and/or subsequent injury shall be

civilly liable for an amount equal to double the amount of damages caused by the improper conduct

to the affected employee and may be prosecuted and punished pursuant to the provisions of

subsection (b) of this section.

     (b) Any employee, representative or otherwise, who allows, engages in, or promotes

psychological abuse creating a toxic work environment and/or subsequent injury shall be guilty of

a misdemeanor and upon conviction, shall be punished by up to one year imprisonment or a fine in

an amount up to fifteen thousand dollars ($15,000) or both.

     (c) It shall be an affirmative defense for an employee if that employee committed a

violation of this chapter at the direction of the employer or a representative employee under threat

of continued employment, termination, or any other such threat.

     (d) Employers and employees can be held liable under this chapter, but an employer or

representative employee cannot hold an employee civilly or criminally liable under this chapter.

     28-60-12. Scope of the protection.

     (a) Any person who reports psychological abuse shall be protected by this chapter.

     (b) No person shall aid, abet, incite, compel, or coerce the doing of an act forbidden under

this chapter or to attempt to do so.

     (c) No employer shall terminate, sanction, mislead, coerce, intimidate, threaten, interfere

with, discriminate against, or otherwise retaliate against any person in the opposition of unlawful

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employment practices or exercise of any right under this chapter, including, but not limited to, an

employee as to the terms, conditions, compensation, location, benefits, or privileges of employment

because the employee or witness offers or attempts to offer, verbally or in writing, any testimony,

statement, information, or claim to a labor union, human resources office, employer office,

legislative, administrative, or judicial forum, or any other internal or external office or otherwise

engages in any other reasonable participation in a claim under this chapter insofar as such

statements constitute a disclosure of privileged information as provided by law.

     (d) The employee shall show proof of the violation through direct and circumstantial

evidence.

     (e) The employee may bring a prima facie case of violation of the law by proving they

reported an incident of workplace psychological abuse and was subsequently terminated,

threatened, or discriminated against in their employment. Once the prima facie case is established,

the employer may allege and provide a legitimate and nondiscriminatory ground for the

termination. If the employer alleges and provides such grounds, the employee shall show that the

grounds alleged by the employer was a mere pretext for termination.

     28-60-13. Affirmative defense.

     (a) An employer may establish an affirmative defense to limit damages for psychological

abuse under this chapter where the employer took all steps outlined in this chapter to acknowledge,

monitor, prevent, discourage, and adequately address the issues and complaints surrounding

allegations of psychological abuse and exercised reasonable care to prevent and promptly correct

any violation in this chapter or acted with just cause.

     (b) Because this chapter requires employers to take all reasonable necessary steps to

adequately address complaints of psychological abuse, an employer shall not be exempt from

liability if the employer or its representative employees or supervisors knew or should have known

of said conduct and failed to acknowledge, monitor, prevent, discourage, or address the allegations

of psychological abuse and promptly correct the situation.

     (c) This defense shall not be available when the employer or its representative employees

or supervisors engage in this conduct.

     28-60-14. Remedies.

     Complainants who prove a violation of this chapter shall be entitled to all remedies

necessary to make such complainants whole. Such remedies shall factor whether a toxic work

environment existed and/or whether or not injury resulted:

     (1) An apology to the complainant employee and mandatory training and/or coaching

and/or counseling and/or discipline for violators of this chapter who remain with the employer.

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Employers shall not limit themselves to this remedy;

     (2) Reinstatement of work;

     (3) Removal of the employee who violated this chapter from supervisory duties or

termination of said employee;

     (4) Economic damages for lost wages, both front pay up to twenty-four (24) months and

back pay;

     (5) Expenses related to treatment related to the psychological abuse including future

medical expenses for psychological injury or resulting physical injury;

     (6) Compensable damages to compensate for the resulting pain and suffering and emotional

and psychological damages;

     (7) Punitive damages to deter future acts of psychological abuse;

     (8) Injunctive relief whereby the court may enjoin the defendant from engaging in the

unlawful employment practice;

     (9) Public notification of the case outcome without disclosing the plaintiff's name if desired

by the plaintiff;

     (10) Attorneys' fees for the prevailing plaintiff; and

     (11) Any other relief deemed appropriate, including restorative measures, including

modification of the disciplinary record of the employee and/or organizational training.

     28-60-15. Statute of limitations.

     Any person who has a cause of action under the provisions of this chapter shall have the

later of a period of three (3) years to file said cause of action from the last alleged psychologically

abusive behavior from the employee with OSHA, or the department of labor and training, or a

private cause of action. If a claimant files a complaint with OSHA or the department of labor and

training, the statute of limitations for filing a private cause of action is tolled.

     28-60-16. Summary proceeding.

     Notwithstanding any general or special law to the contrary, in any judicial proceeding

instituted for violations of the provisions of this chapter, the aggrieved person may choose to bring

their cause of action through a summary proceeding. For purposes of this section, a summary

proceeding shall be conducted by a superior court judge sitting without a jury. The Rhode Island

court rules of evidence shall not apply, except as to privilege, in a summary proceeding but shall

be considered as a guide toward full and fair development of the facts, The court shall consider all

evidence presented and give it the weight and effect deemed appropriate.

     28-60-17. Severability clause.

     If any clause, paragraph, subparagraph, article, provision, section, or part of this chapter

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are held to be unconstitutional or void, the holding to such effect shall not affect, impair, or

invalidate the remainder of this chapter. The effect of said holding shall be limited solely to the

clause, paragraph, subparagraph, article, provision, section, or part thereof thus held to be

unconstitutional or void.

     28-60-18. Conflict with laws.

      (a) Nothing in this chapter should limit employee rights under any other law including the

OSH Act, laws under state-level OSHA agencies or their equivalent, Title VII of the Civil Rights

Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, state EEO

laws, the National Labor Relations Act (NLRA), and state labor rights laws.

     (b) Nothing under this chapter shall restrict workers from negotiating broader protections

via collective bargaining or other concerted activity.

     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 -- WORKPLACE PSYCHOLOGICAL

SAFETY ACT

***

     This act would prohibit any type of psychological abuse in the workplace inflicted by an

employer upon an employee or by a co-employee upon an employee that results in the violation of

an employee's right to a physically and psychologically safe work environment.

     This act would also provide an employee subject to bullying, psychological abuse,

psychological injury and/or physical injury with protections in the workplace and civil remedies

against perpetrators of any prohibited activity. This act also would assess civil penalties upon

employers violating the act based upon the gross amount of revenues earned by employers in

addition to civil liability for damages sustained by the employee as well as civil and criminal

liability for any such conduct of a co-employee.

     This act would take effect upon passage.

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