New California Law Expands Harassment Training Obligation
The subject of bullying in schools and in the workplace has over the past several years attracted nationwide attention and generated significant discussion. California recently took its first steps toward addressing the problem of workplace bullying.
New Law Aims to Prevent Workplace Harassment
On September 9, 2014, Governor Brown signed AB2053. This new law amends California Government Code section 12950.1 – the Statute that obligates employers with 50 or more employees to conduct biennial sexual harassment training for supervisors – to require training aimed at “prevention of abusive conduct as a component of the training.” The Statute defines abusive conduct as follows:
[C]onduct 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, such as the use of derogatory remarks, insults, and epithets, 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.
What kind of training is required?
Although well intended, the new law may leave employers scratching their heads when trying to develop training programs that comply with the new law as it provides little guidance about the type of conduct the training should aim to prevent. For example, use of the term “malice” in the definition seems to suggest that the bully must have acted with the intent to threaten, intimidate, humiliate, sabotage or undermine. But does it require something more?
And what type of workplace conduct will qualify as “sabotage” or “undermining of a person’s work performance?” In many workplaces, the line between healthy competition and sabotage/undermining may prove hard to draw. Given that competition within the workplace – even if aggressive, manipulative, or underhanded – can often benefit a company, drawing the line in the wrong spot can adversely affect innovation, productivity, and profitability. The Legislature’s attempt to draw a line by defining abusive conduct to include only “gratuitous” sabotage and undermining of someone’s work performance may offer little guidance for an employer trying to develop training materials that will effectively explain when something has crossed the line without unduly squelching aggressive competition by someone trying to get ahead in the workplace.
Is bullying still legal in the workplace?
Finally, given that the Statute does not make unlawful the act of workplace bullying – a move for which some had advocated – it seems unclear why the Legislature noted within the definition of abusive conduct that “[a]single act shall not constitute abusive conduct, unless especially severe and egregious.” To the extent that the Legislature included this sentence to further define the scope of abusive conduct at which employers should direct the training, it provides little clarity as it essentially states that a single incident will not qualify as wrongful bullying unless it does. Moreover, it seems unlikely that employers will conduct the training in a way that might suggest that employees can get away with one incident so long as they do not go too far.
Few people would argue against the value of eliminating bullying in the workplace, and raising awareness of the problem through training makes a good first step. But when a law imposes on companies an obligation to conduct training without providing some clear guidance on what that training should include and the parameters of the conduct at which the training aims, it can create more problems than it solves.