By now, California employers should be aware of the “antibullying” law, which became effective on the first of this year. The statute is a compromise between employee rights groups seeking expansion of existing “harassment” laws and pro-business groups seeking to put the brakes on what they believe is an over-regulated business environment. Employee advocates for a stronger law include the Workplace Bullying Institute,1 a national organization whose goal is to get every state to adopt a uniform “anti-bullying” statute prohibiting employers from subjecting employees to abusive conduct in the workplace.2
So far California is the only state in the country that has passed legislation addressing workplace bullying. But it appears, at least for the moment, that even this state’s lawmakers, who have a strong history of enacting legislation protecting workers, agree there should be limits to what government can and should do to regulate workplace conduct.
California’s anti-bullying law actually does not prohibit workplace bullying. It merely requires that employers provide periodic training and education for their supervisors regarding abusive conduct. The anti-bullying law was passed in the form of an amendment to an existing workplace training and education provision in the California Fair Employment and Housing Act (“FEHA”). Prior to the amendment, FEHA mandated that employers with fifty or more employees provide at least two hours of sexual harassment training and education to all supervisory employees, and thereafter provide such training and education every two years. See Cal.Govt.Code section 12950.1.3 The new law now requires that employers expand this training and education to “also include prevention of abusive conduct.” Cal.Govt.Code section 12951.1(b).
“Abusive conduct” is defined in the new law as “conduct 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.” It 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.” Cal.Govt.Code section 12950.1(g)(2).
With the passage of the new law, attorneys inevitably will face the question of what happens if one of their clients fails to timely implement the anti-bullying training and education requirements? Or what happens if a claim is made that the training and education that was administered fails to meet minimum professional standards or was otherwise deficient? A legitimate argument can be made that while FEHA’s sexual harassment training and education provision contains minimum requirements, both in terms of content and the qualifications of the trainers and educators,4 no such requirements exist for the “abusive conduct” training and education provision.
Employment lawyers representing workers undoubtedly will disagree with this limiting interpretation of the amendment. They instead will argue that because the amendment expressly states that employers “shall also include prevention of abusive conduct as a component of the training and education,” the amendment clearly demonstrates a legislative intent to require employers to provide the same quality of workplace training and education for both topics.5
Even if this pro-worker interpretation is correct, an employer’s failure to comply with the new training and education requirements does not appear to give rise to an independent cause of action by or on behalf of an affected employee. Before the amendment, FEHA provided that if an employer violated the sexual harassment education and training mandate, the remedy was for the Department of Fair Employment and Housing (and not affected employees) to seek an order requiring compliance.6 FEHA also provided that a claim that the training and education requirements “did not reach a particular individual or individuals shall not in and of itself result in any action alleging sexual harassment.”7 The amendment adding abusive conduct as a required subject of training and education did not change either of these provisions.
Although there are a few published cases that address claims that an employer has not taken “all reasonable steps necessary to prevent discrimination and harassment” under FEHA,8 there is little case law providing direct guidance on FEHA’s training and harassment provisions. Hence, employment law practitioners will be closely watching how courts will interpret the new anti-bullying requirements.
Jonathan M. Turner is founding partner at Epstein Turner Weiss in L.A.
Jonathan represents management in all aspects of labor and employment law.
1 The website for Workplace Bullying Institute is located at http://www.workplacebullying.org/
2See website pages for “Healthy Workplace Bill” at http://www.healthyworkplacebill.org/
3 FEHA’s statutory provisions are found in California Government Code sections 12940, et seq.
4 FEHA section 12951.1(a) provides, among other things, that “[t]he training and education required …shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment[,]” and “shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.”
5 See Cal.Govt.Code section 12950.1(b).
6 Cal.Govt.Code section 12950.1(e).
7 Cal.Govt.Code section 12950.1(d). This same provision also states that “[c]onversely, an employer’s compliance with [the training and education requirements] does not insulate the employer from liability for sexual harassment of any current or former employer or applicant.”
8 See Dickson v. Burke Williams, Inc. (March 6, 2015) __Cal.App.4th __ (discussing Cal.Govt.Code section 12940(k), which provides for a separate right of action against an employer who fails to take “all reasonable steps necessary to prevent” discrimination or harassment, but requiring first that the employee establish an underlying violation of rights and injury under FEHA.)