Bar News - August 20, 2014
Workers Comp & Personal Injury: Government Workplace Abuse Bill Vetoed But May Return
By: Martin Jenkins
A bill introduced in January 2013 that would have protected government employees from “abusive conduct” in the workplace was recently vetoed by Gov. Maggie Hassan.
Sponsored by State Rep. Diane Schuett (D-Pembroke), House Bill 591 originally defined “abusive conduct” very broadly as employee acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the employee’s conduct, including, but not limited to: repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; sabotage or undermining of an employee’s work performance; or attempts to exploit an employee’s known psychological or physical vulnerability.
Government workers who believed they were victims of such abusive conduct, whether by a superior or any co-employee, could complain to the NH Department of Labor. In addition, the worker could pursue a private right of action in Superior Court seeking remedies including “reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for emotional distress, and attorney’s fees.”
After emotional testimony at hearings in the NH House Committee on Labor, Industrial and Rehabilitative Services, a slightly amended version of HB 591 passed the full House in March 2013. But in the Senate, the bill sat without formal action for nine months.
During that time, in an effort to forestall the need for such a law and to proactively promote a respectful workplace, the NH Division of Personnel initiated a training program for state workers. Nearly all of the state’s roughly 10,000 employees participated in the online training.
Nonetheless, in January 2014, the Senate Committee on Executive Departments and Administration passed a further amended version of the law. With a few more edits, the full Senate passed the bill by voice vote. This version listed eight broad examples of abusive conduct, any of which could lead to a complaint and investigation:
(a) Constant and harsh displays of disrespect.
(b) Behavior or language that frightens, degrades, or criticizes the employee alone or in public.
(c) Encouraging others to turn against the targeted employee.
(d) Ignoring or showing hostility towards an employee seeking information or assistance.
(e) Using confidential information to publicly humiliate an employee.
(f) Creating unreasonable demands, for example workload, deadlines, or duties that set a worker up for failure.
(g) Constant and unreasonable criticism which is not part of a typical evaluation process.
(h) Deliberately denying an employee access to information or resources necessary to properly complete a task.
This latest amended version of the bill applied only to employees of the state (not political subdivisions, as the original version had) and required each state agency to develop a written policy prohibiting abusive conduct. However, this version of HB 591 did not create a private right of action, nor did it list any remedies except conflict resolution assistance. It did require that records of such a complaint and investigation be kept for three years (presumably for discovery in any collateral legal action).
As the legislative session came to a close in May 2014, the House at first refused to go along with the Senate version of HB 591 and requested a committee of conference. But ultimately the House did concur, and without further changes the bill went to the governor for signature.
On July 28, Gov. Hassan vetoed the bill. Her message explained that while the bill was well-intentioned, it had poorly defined and unworkable provisions. She thought it would disrupt workplaces as it attempted to legislate politeness. Using a series of hypothetical examples, she illustrated how seemingly common workplace activities might lead to complaints that would be difficult to investigate and resolve.
The governor’s veto message also expressed the fear that this new legal standard would push similar workplace requirements into the private sector business community. Some business groups, including the NH Business and Industry Association, joined the governor in this concern.
The sponsors of HB 591 have disagreed with the governor’s veto message. They argue that bullying in the workplace is pervasive and harmful, and efforts so far have failed to root it out. The head of the state employees’ union, SEIU Local 1984, has pushed for formal action; an executive order at least.
As this is written, there is time for the Legislature to vote to override the governor’s veto. Even if an override is not attempted, or is not successful, another bill on the topic will likely be introduced in a future legislative session.
Martin Jenkins has been an attorney in New Hampshire for 36 years. Currently, he is legal counsel for the NH Department of Labor.